GIFT 
MICHAEL 


POLITICS 


AN  INTRODUCTION  TO  THE  STUDY  OF  COMPARATIVE 
CONSTITUTIONAL  LAW 


BY 


WILLIAM    W.    CRANE 


BERNARD    MOSES,    Pn.D 

PKOFE6SOR  OF   HISTORY  AND   POLITICAL   ECONOMY  Ilf  TH 
UNIVERSITY  OF  CALIFOENIA 


NEW    YORK    &    LONDON 

G.    P.    PUTNAM'S    SONS 

£(jt  ^nicktrbodur  |)ress 

1898 


COPYRIGHT 

G.  P.  PUTNAM'S   SONS 


Electrotyped,  Printed,  and  Bound  by 

Ubc  fmici;erbocfeer  press,  Hew 
G.  P.  PUTNAM'S  SONS 


CONTENTS. 


CHAPTER   I. 

PAGE 

INTRODUCTORY i 

CHAPTER   II. 
THE  NATION 6 

CHAPTER   III. 
THE  SOVEREIGN 33 

CHAPTER   IV. 
THE  ORGANS  OF  THE  SOVEREIGN. 47 

CHAPTER  V. 
THE  FORCE  OF  THE  NATION 55 

CHAPTER   VI. 
LOCAL  POWERS ' 63 

CHAPTER   VII. 
INSTINCT  AS  A  FACTOR  OF  POLITICAL  ORGANIZATION 68 

CHAPTER   VIII. 

THE  POLITICAL   HERITAGE   OF   THE  BRITISH  COLONIES  IN 

AMERICA 82 


137249 


IV  CONTENTS. 

CHAPTER   IX. 

PAGE 

EARLY   IMPULSES   TO   NATIONAL  UNITY   IN  THE   BRITISH 

COLONIES 126 

CHAPTER   X. 
CENTRIFUGAL  AND  CENTRIPETAL  FORCES 135 

CHAPTER   XL 
THE  MAKERS  OF  CONSTITUTIONAL  LAW 142 

CHAPTER   XII. 
THE  MAKERS  OF  ADMINISTRATIVE  LAW 155 

CHAPTER   XIII. 
THE  BICAMERAL  SYSTEM  OF  THE  MODERN  LEGISLATURE.     164 

CHAPTER  XIV. 
THE  INITIATIVE  IN  LEGISLATION 179 

CHAPTER   XV. 
DISTRIBUTION  OF  POWERS 193 

CHAPTER   XVI. 

THE  CONDITIONS  AND   TENDENCY  OF   NORMAL  POLITICAL 

GROWTH 203 

CHAPTER    XVII. 
THE  TENDENCY  OF  POWER  IN  FEDERAL  GOVERNMENT....  223 

CHAPTER    XVIII. 
THE  TENDENCY  OF  POWER  IN  THE  UNITED  STATES 231 


CONTENTS.  V 

CHAPTER   XIX. 

PAGE 

THE  TENDENCY  OF  POWER  IN  SOME  EUROPEAN  FEDERA- 
TIONS   253 

CHAPTER   XX. 
POLITICAL  PARTIES 265 

CHAPTER   XXL 
CONCLUSION 287 


POLITICS, 


CHAPTER   I. 

INTRODUCTORY. 

THE  structure  and  development  of  the  state,  as  an  or- 
ganism for  the  concentration  and  distribution  of  the 
political  power  of  the  nation,  form  the  subject-matter  of 
analytical  politics,  or  of  politics  as  a  science ;  while  the 
determination  of  what  the  state  should  do  falls  within 
the  sphere  of  practical  politics,  or  of  politics  as  an  art. 
Analytical  politics,  or  politics  as  a  science,  concerns  itself 
with  the  construction  of  governments,  with  their  instru- 
mentalities for  carrying  out  the  will  and  using  the  force 
of  communities  or  nations ;  and  with  reference  to  a  par- 
ticular government  at  a  particular  period,  it  may  point 
out  in  what  person  or  department  the  preponderance  of 
power  lies,  or  how  power  is  distributed.  In  short,  it 
treats  of  the  mechanismj^government,  illustrated  by  its 
development.  It  may  be  properly  termed  the  science  of 
government.  Political  motives  and  aims,  on  the  other 
hand,  represent  merely  the  various  states  of  mind  and 
views  of  conduct  actuating  those,  whether  few  or  many, 
who  aid  in  determining  the  will  of  the  nation,  and  per- 
tain properly  to  the  art  of  government,* 

To  determine  the  structure  of  all  political  organisms, 

*  See  Bluntschli,  "  Lehre  vom  modernen  Stat,"  Stuttgart,  1 876, 
III.,  pp.  1-3. 


2  POLITICS. 

or  of  any  given  one,  is  one  thing,  but  it  is  quite  another 
thing  to  determine  how  this  being  or  organism  should 
express  itself  or  act  in  any  given  case.  The  inquiry  as  to 
what  should  be  the  end  or  object  of  a  government  can 
find  no  place  in  the  examination  of  what  the  government 
is.  It  is  sometimes  said  that  the  state  is  an  ethical  being. 
It  is,  per  se,  morally  neither  good  nor  bad.  Bad  men 
may  use  it  for  bad  purposes,  or,  on  the  contrary,  virtuous 
men  may  make  it  a  beneficent  instrument.  In  either  case, 
it  is  merely  an  instrument  which,  in  consequence  of  its 
structure,  lodges  power  in  some  particular  part  of  the 
community.  The  Czar  of  Russia  may  use  his  autocratic 
power  so  as  to  promote  the  greatest  good  of  the  greatest 
number,  and  the  people  of  the  United  States  may  so 
exercise  their  constitutional  power  as  to  produce  general 
disaster  and  ruin.  The  one  may  be  an  immoral  or 
irreligious  use  of  the  powers  of  the  state,  and  the  other 
the  reverse,  but  neither  cuts  any  figure  in  determining 
the  structure  of  the  two  states.  It  must  be  borne  in 
mind  that  the  quantum  of  power  in  the  two  nations  is 
the  same  ;  the  fact  of  how  it  is  used,  or  the  character  of 
the  ends  towards  which  this  power  is  directed,  do  not 
properly  come  within  the  province  of  the  science  of 
politics. 

It  is  not  to  be  disputed,  however,  that  the  structure  of 
a  government  may  be,  not  only  the  result  of  particular 
social  tendencies,  but  may  be  also  promotive  of  certain 
of  these  tendencies,  because  government  is  not  an  ab- 
straction, but  is  a  specific  agency  of  the  sovereign  part  of 
the  nation  for  doing  certain  acts,  and  maintaining  certain 
relations  between  the  members  of  that  nation,  and  be- 
tween the  nation  itself  and  other  nations.  In  this  view,  it 
is  not  foreign  to  the  scope  of  a  science  of  politics  to  in- 
quire what  will  be  the  probable  political  evolution  of  any 


INTRODUCTORY.  3 

given  nation,  and  to  reason  deductively  from  known 
qualities  of  human  nature  to  the  probable  outcome  of  any 
given  political  arrangements,  as  is  sometimes  done  by  the 
political  economist  with  reference  to,  economical  affairs. 

But  we  must  be  careful  to  draw  the  line  between  what 
the  state  w,  or,  under  given  circumstances,  must  be,  and 
what  the  state  should  be,  and  should  do.  A  very  common 
fault  in  much  of  the  current  writing  on  politics,  is  the 
mixing  up  of  the  treatment  of  such  subjects  as  the  sphere 
and  ends  of  the  state,  or  personal  rights,  or  national 
rights  or  law,  or  political  ethics,  or  the  limitations  of  the 
action  of  the  state,  with  the  consideration  of  the  impulses 
which  control  men  in  the  formation  of  political  communi- 
ties or  with  the  consideration  of  the  structure  of  the  state, 
and  the  organs  and  instrumentalities  through  which  the 
work  of  the  state  is  accomplished.  By  clearly  separating 
the  two  orders  of  topics,  we  are  better  able  to  comprehend 
each  in  its  proper  place.  The  direction  of  the  will  of 
the  community  or  nation,  and  the  use  of  the  force  of  the 
community  or  the  nation,  will  finally,  among  intelli- 
gent people,  be  guided  by  what  experience  teaches  is 
the  best  code  of  private,  as  well  as  public,  law.  And  the 
determination  of  what  is  the  true  sphere  of  the  state, 
or  what  should  be  the  maxims  touching  personal  or 
national  rights,  or  law,  or  ethics,  would  be  the  same 
without  reference  to  the- form  of  government,  or  even 
to  its  historical  development.  The  consideration  of  these 
topics  touches  rather  the  daily  movement  of  thought 
and  action  within  the  completed  state,  and  while  of  the 
most  vital  interest  to  the  members  of  a  political  com- 
munity, yet  furnishes,  merely  rules  of  conduct,  and 
should  be  eliminated  from  inquiries  into  the  laws  of  the 
state's  being.  Even  the  theories  as  to  the  duties  of  the 
state  which  are  so  radically  opposed  to  each  other  as  those 


4  POLITICS. 

of  the  so-called  Manchester,  or  free-trade,  school  of  poli- 
ticians, and  the  Socialists,  may  be  applied,  according  to 
their  advocates,  under  any  form  of  government,  from  the 
most  absolute  monarchy,  to  the  most  democratic  repub- 
lic. The  former  would  restrict  the  state  to  the  narrowest 
limits,  making  a  sort  of  policeman  of  it,  whose  only  duty 
is  to  prevent  men  depredating  upon  one  another.  The 
extremists  of  this  school  would  introduce  absolute  free- 
trade,  and  non-interference  of  the  government  in  any 
business  or  pursuit.  In  their  view,  the  state  should  not 
concern  itself  about  the  schools,  or  poor-laws,  or  religion, 
or  morals  ;  they  assert  that  it  fulfills  its  duty  when  it 
leaves  every  one  entirely  free  to  follow  out  his  own  ideas 
of  happiness  in  his  own  way,  provided,  however,  he  does 
not,  in  so  doing,  encroach  on  the  rights  of  his  neighbor. 

I  The  greatest  degree  of  personal  freedom  is  the  cardinal 
point  with  this  school.  On  the  opposite  side  stand  the 
Socialists,  who  claim  that  government  should  control 
all  the  instruments  of  labor,  the  soil,  the  mines,  the 
machinery  within  the  state,  which  should  be  used  for 
the  benefit  of  the  workingmen  ;  that  wages  should  be 
abolished,  and  the  state  should  see  that  the  workingman 
is  duly  paid  for  his  hours  of  labor,  without  reference  to 
skill.  Intermediate  between  these  two  extremes,  are 
many  who  believe  that  the  state  should  control  the  liberty 
of  the  citizen,  at  various  points,  for  the  good  of  the  whole. 
Some  would  have  all  the  land  owned  by  the  state,  and 
leased  for  the  common  benefit ;  others  think  that  the 
ways  of  communication,  the  railroads  and  telegraph  lines, 
should  be  so  controlled.  Some  are  in  favor  of  compul- 
sory education  ;  some  believe  in  the  prohibition  of  the 
sale  of  intoxicating  liquors,  and  so  on,  through  numer- 
ous applications  of  state  power  to  the  community.  But 
all  parties  start  from  the  same  point ;  they  all  tacitly  or 


INTRODUCTORY.  5 

argumentatively  assume  that  in  the  sovereign  political 
community  there  are  no  actual  limitations  of  power,  ex- 
cept those  self  imposed  by  the  community.  And  furthei, 
their  several  views  may  be  carried  out  without  any  essen- 
tial alteration  in  the  form  of  any  government.  So  far  as 
it  concerns  the  political  structure  of  the  British  govern- 
ment, the  Socialistic  scheme  could  be  carried  out  without 
change.  And  the  same  scheme  could  be  effected  without 
change  in  Russia.  So  again,  what  are  denominated  per- 
sonal political  rights,  as,  for  instance,  those  enumer- 
ated in  our  Federal  Constitution,  may  exist  and  be  pro- 
tected under  any  form  of  government.  An  absolute  king 
may  consider  it  wise  policy  to  concede  them,  and  still  be 
an  absolute  king,  so  long  as  he  has  power  to  abolish 
them.  That  they  are  fixed  by  a  written  constitution, 
as  in  the  United  States,  simply  indicates  that  the  power 
to  abolish  them  is  deposited  at  another  point  in  this  or- 
ganism than  in  the  absolute  state. 

In  states  having  popular  governments,  all  these  ques- 
tions are  more  particularly  addressed  to  political  par- 
ties ;  they  pertain  to  the  art  of  government.  They  should 
be  taken  account  of  by  the  person  or  body  of  persons  who 
express  the  will  of  the  nation  and  wield  the  force  of  the 
nation,  but  they  occupy  a  field  apart  from  scientific  poli- 
tics ;  they  hold  with  respect  to  this  subject  the  position  of 
an  art  in  relation  to  its  corresponding  science.  * 

*  For  a  brief  statement  of  the  views  of  various  authors  on  the 
nature  and  ends  of  the  state,  see  Kautz,  "  Theorie  und  Geschichte 
der  National-Oekonomik,"  p.  261,  note  n. 


CHAPTER    II. 

THE    NATION. 

THE  nation  is  an  organic  social  being,  a  growth,  and 
not  an  artificial  creation. 

The  human  race  is,  and  always  has  been,  divided  into 
social  groups.  These  groups  are  of  different  sizes,  vary- 
ing between  small  bands  of  depredating  savages  and  a 
great  empire.  Whenever  we  can  outline  a  distinctive 
group,  however  insignificant  it  may  appear,  we  shall  find 
that  it  exhibits  an  internal  tie  of  political  coherence  which, 
in  a  greater  or  less  degree,  individualizes  that  community. 
It  is  possible  to  contemplate  these  social  groups  apart  from 
their  governments,  or  the  political  forces  at  work  in  or  be- 
tween them.  A  prime  essential  of  clear  political  discus- 
sion is  to  have  at  the  outset  a  proper  conception  of  the 
nature  of  the  social  group  in  question  ;  if  in  national  poli- 
tics, then  of  the  nation. 

It  may  be  thought  that  the  term  state  suffices  to  convey 
an  idea  of  what  a  nation  is  ;  but  this  term  rather  narrows 
the  definition  to  the  purely  governmental  part  of  the 
nation  ;  there  is  something  beyond.  Again,  the  term 
state  is  now  frequently  applied  to  one  of  a  federation,  as 
in  the  United  States  and  in  the  German  Empire,  and  to 
dependent  and  unimportant  political  bodies,  as  the  Sla- 
vonic states,  Bulgaria,  Servia,  Herzegovina,  and  others. 

In  the  use  of  the  words  nation,  nationality,  and  people, 
there  is  still  considerable  confusion  in  political  writings, 
especially  in  the  ordinary  periodical  literature.  German 


THE  NATION.  7 

writers  on  politics  use  the  word  nation  in  a  sense  opposite 
to  that  usually  given  to  it  by  Americans,  Englishmen,  and 
Frenchmen.  They  mean  by  the  word  nation  what  we  ordi- 
narily understand  by  the  word  people.  For  instance,  when 
they  speak  of  the  German  nation,  they  comprehend  all 
Germans  living  in  German  communities.  As  Bluntschli 
expresses  it,  "the  nation  is  an  intellectual  being  (Cultur- 
wesen),  because  its  inner  composition,  as  well  as  its  sep- 
aration from  foreign  nations,  have  principally  arisen  out 
of  intellectual  development,  and  especially  manifest  their 
effect  in  its  intellectual  conditions."*  All  Germans,  in 
Prussia,  Bavaria,  Austria,  and  elsewhere,  compose,  in  this 
view,  the  German  nation.  The  word  people  ( Volk),  on 
the  other  hand,  imports  a  politically  united  body  of  per- 
sons, who  need  not  necessarily  be  of  the  same  race  or 
stock.  In  this  sense,  those  subject  to  the  German  Em- 
pire are  the  German  people,  while  those  of  the  same  stock 
in  Austria  are  part  of  the  Austrian  people,  though  belong- 
ing to  the  German  nation.  The  Alsatian  is  considered 
one  of  the  German  people,  because  the  country  now  be- 
longs to  the  German  Empire,  while  he  may,  at  the  same 
time,  be  styled  one  of  the  French  nation,  because  he  was 
born  a  Frenchman,  speaks  French,  and  is  socially  and  in 
culture  and  sympathies  assimilated  to  the  French.  Ger- 
man writers  justify  this  use  of  the  term  nation  upon  ety- 
mological grounds,  because  the  word  natio  signifies  a  race, 
a  species.  The  more  general  use  among  French  pub- 
licists, and  those  of  England  and  this  country,  is  of  the 
term  nation  as  signifying  a  large  political  body.  The 
prominent  mark  is  political  sovereignty,  though  there  may 
also  be  the  minor  marks  of  community  of  race,  language, 
and  possibly  religion. 

The  term  people,  on   the  other  hand,  with  the  latter, 
*  "  Lehre  vom  modernen  Stat,"  Stuttgart,  1875,  I.,  p.  95. 


8  POLITICS. 

implies  a  common  race  origin.  It  is  rather  of  social  than 
political  import.  A  nation  may  be  an  artificial  creation, 
but  a  people  is  always  a  natural  growth.  We  can  properly, 
in  this  view,  speak  of  the  British  nation,  but  not  of  the 
English  or  Scotch  or  Irish  or  Welsh  nations,  though,  of 
course,  it  is  correct  to  speak  of  the  Englisrfor  the  Scotch 
or  the  Irish  or  Welsh  peoples. 

It  is  not  out  of  place  to  call  attention  to  these  contra- 
dictory significations  given  to  the  same  words,  because  the 
confusion  of  ideas  alluded  to  is  quite  apt  to  mix  together 
purely  political  with  purely  social  conceptions. 

Following  the  English  signification,  we  may,  in  the 
most  general  way,  define  the  nation  to  be  a  political  being, 
consisting  of  the  totality  of  persons  who  are  subject  to  the 
same  political  sovereignty.  But  it  is  very  much  more. 
This  bald  definition  only  suffices  to  circumscribe  our  ideas 
to  the  body  which  we  are  to  contemplate  ;  it  merely  points 
out  the  object  distinctly.  In  truth,  it  is  impossible  to 
compress  into  a  definition  what  a  nation  is.  It  is  indis- 
pensable that  there  shall  be  a  political  tie.  There  must 
be  sufficient  political  coherence  to  present  toother  nations 
the  general  characteristics  of  a  distinctive  state.  Still, 
political  bands  alone  do  not  suffice  to  stamp  the  real 
nation.  It  is  a  mere  artificial  jumble  of  individuals  unless 
it  has  that  inner  cohesion,  unity,  and  soul,  which  give  it 
the  character  of  an  organic  being. 

The  ripe,  developed  nation  is  an  organic  being.  If  it  had 
so  happened  that  the  fifty  millions  of  inhabitants  within 
the  boundaries  of  the  United  States  had  poured  into  this 
country  from  the  different  parts  of  the  world  during  the 
past  five  years,  and  had  already  established  an  organized 
government  which  was  being  peacefully  administered,  and 
one  were  called  upon  to  characterize  this  motley  body,  he 
could  only  say,  that  here  were  the  beginnings  of  a  nation, 


THE   NATION.  9 

that  it  would  take  many  generations  to  perfect  that  organic 
oneness  which  is  the  mark  of  the  ripe  nation.  Out  of 
these  miscellaneous  elements  there  might  grow  in  time  a 
complex  fusion  of  dependent  activities,  of  mutual  sympa- 
thies, of  common  ideals,  and  finally  of  intense  national 
consciousness. 

We  all  know  the  mysterious  tie  which  binds  one  to  his 
native  land,  and  to  his  nation — a  tie  which  grows  stronger 
as  the  years  increase,  and  often  becomes  most  intense  in 
the  decline  of  life.  We  cannot  penetrate  to  the  hidden 
springs  of  this  universal  feeling ;  we  can  only  point  to  it 
as  a  great  fact  in  human  experience.  It  emphasizes,  how- 
ever, certain  limitations  and  needs  in  theindiv:dual.  We 
may  imagine  men,  as  at  some  almost  incomprehensibly 
remote  time,  wandering  alone  in  the  depths  of  forests, 
and  hiding  in  caves,  each  looking  upcn  every  other  man 
"  as  an  enemy  to  be  slain,  or  spoiled,  or  hated,"  but  it  is 
only  as  an  animal,  as  an  ' '  ape-like  man, "  that  we  can  thus 
think  of  him.  As  a  human  being,  such  as  human  beings 
have  been  since  the  beginning  of  historical  times,  we  can- 
not conceive  of  him  other  than  as  having  been  in  social 
and  political  relations  with  at  least  some  of  his  fellows. 
By  political  relations  we  understand  a  condition  where 
there  is  one,  or  more  than  one,  who  governs,  and  where 
there  are  others  who  are  governed. 

A  cardinal  fact  in  human  history  is,  that  all  political 
evolution  has  been  through  grrmjii^  of  pe.rsops.  The 
political  unit  is  not  one  man  but  a  group  of  men.  It 
has  always  been  thus,  whether  the  unit  was  a  family,  the 
enlarged  family  or  tribe,  or  lastly  the  nation.  The  nation 
is  but  an  expansion  of  the  original  unit,  or  what  is  almost 
universally  the  case,  the  fusion  of  many  units  into  one. 

Go  back  as  far  as  we  please  in  the  annals  of  the  human 
race ;    and   we  shall  always  find   a  distinctive  group  or 
i* 


10  POLITICS. 

groups.  There  may  have  been,  and  very  likely  was,  an 
era  when  there  was  promiscuous  intercourse,  but  there 
arrives  a  period  when  out  of  the  chaos  the  family  emerges. 
The  starting-point  of  all  the  progressive  races  has  been  the 
family.  The  first  known  tie  binding  men  into  groups 
was  the  blood  tie.  The  characteristic  of  these  primal 
social  groups  was  their  oneness.  They  contained  within 
themselves  every  element  of  modern  political  government, 
the  legislative  or  will  power,  the  executive  or  administra- 
tive power,  and  the  judicial  power.  These  were  mingled 
and  confused,  residing  sometimes  altogether  in  one  per- 
son, and  at  others  in  parts,  or  in  the  whole  of  the  commu- 
nity ;  and  growth,  politically,  has  been  the  differentiating 
of  these  functions  into  departments  of  government.  These 
original  groups  were  organic  social  beings.  The  individu- 
als composing  them  were  subordinate  parts  of  the  organ- 
ism. The  ancient  Greeks  considered  themselves  as  made 
up  of  distinct  races,  and  we  find  in  the  great  Arnphicty- 
onic  assembly,  which  was  held  in  the  spring  at  Delphi 
and  in  the  autumn  at  Thermopylae,  that  there  were  twelve 
constituent  members,  or  twelve  races,  represented.  When 
Kleisthenes,  510  B.C.,  accomplished  the  great  democrat- 
ical  revolution  in  Athens,  he  did  not  dare  to  break  down 
and  abolish,  nor  did  he  probably  have  any  thought  of 
breaking  down  and  abolishing,  the  tribal  organization.  He 
wished  to  confer  the  suffrage  upon  that  large  body  of  per- 
sons who  had  gradually  settled  in  Attica,  but  who  were 
excluded  from  the  primitive  tribes,  and  in  order  to  accom- 
plish this  purpose  in  conformity  with  the  then  existing 
conceptions  of  political  unity,  he  abolished  the  four  Ionic 
tribes  and  redistributed  the  population  into  ten  new 
tribes. 

In  Greece,  the  city  was  the  limit  to  which  the  unifying 
sentiment  spread.     The  city  was  the  Greek  nation.      It 


THE  NATION.  II 

was  the  central  political  power,  to  which  territorial  pos- 
sessions might  be  attached,  or  from  which  colonies  might 
go  forth.  The  initial  point  of  the  immense  political  power 
of  Rome  was  also  in  the  clan.  As  in  Greece,  it  expanded 
into  the  city,  which  became  the  source  of  political  power, 
and  also  furnished  the  limit  of  nationality.  The  fiction  of 
the  blood  tie  pervaded  the  tribal  organizations  of  Greece 
and  Rome  long  after  the  memory  of  the  facts  upon  which 
it  was  founded  had  died  rut  ;  just  as  the  English  fiction, 
that  all  titles  to  land  find  their  source  in  the  king,  has 
survived  the  feudal  system.  What  may  be  called  the  uni- 
fying sentiment  extended  from  the  family  into  the  tribe, 
and,  in  Greece  and  Rome,  into  the  city.  In  Greece, 
however,  time  was  not  given,  before  its  absorption  by  its 
Italian  conquerors,  to  develope  a  wider  sentiment.  This 
grew  up  gradually  in  Rome,  and  had  really  assumed  the 
dimensions  of  nationality  when,  in  the  latter  days  of  the 
republic,  the  city  was  extended  by  fiction  of  law  so  as  to 
take  in  the  whole  of  Italy. 

The  Roman  state  was  circumscribed  by  the  boundaries 
of  the  city  ;  but  it  was  an  immense  advance  in  the  national 
idea  when  it  was  so  enormously  enlarged  by  this  fiction. 
The  family  and  communal  social  units  that  pervaded 
India  and  Asia,  in  very  early  times,  never  developed  gen- 
uine nationalities.  There  were,  it  is  true,  great  aggrega- 
tions of  these  units  into  empires,  which,  as  has  been  justly 
remarked,  were  no  more  than  tax-collecting  governments. 
They  lacked  the  necessary  unity  of  nature,  and  conse- 
quently crumbled  to  pieces  ;  or  rather,  when  the  slight 
political  force  which  held  them  together  was  disturbed, 
they  passed  into  new  forms  or  under  new  governors,  with- 
out any  change  in  their  inner  constitution.  It  was  merely 
a  rearrangement  of  the  same  political  units  which  were 
inherently  separate.  The  tribal  or  dan  organizations  of 


12  POLITICS. 

middle  and  western  Europe  were  gradually  transformed 
into  communities,  whose  political  bands  arose  from  the 
habitation  of  specific  territories,  instead  of  from  the  old 
blood  tie,  and  the  fictions  which  grew  out  of  it.  Hence 
it  is  that  an  essential  mark  of  the  nation  is  that  it  shall 
have  exclusive  occupation  of  a  distinctive  portion  of  the 
earth's  surface. 

Looking  back  over  the  troubled  surface  of  history,  we 
discover  a  leading  fact,  that  human  beings,  always  living 
in  groups,  have  been  pitted  against  each  other  in  the  in- 
cessant war  which  has  been  progressing  since  the  infancy 
of  the  race,  and  that  the  natural  selection,  by  which  those 
best  adapted  to  their  environment  have  survived,  has  been 
of  social  groups  rather  than  of  individuals.  And,  other 
things  being  equal,  that  group  will  win  the  fight,  and 
grow  at  the  expense  of  others,  which  is  most  completely 
homogeneous  and  is  the  largest.  The  reasons  for  this  are 
to  be  found  in  human  nature  itself.  The  individual 
human  being  has  desires,  physical  and  intellectual,  which 
are  capable  of  indefinite  expansion  ;  but  his  ability  to 
gratify  them  is  so  feeble  that,  if  left  alone,  he  could  ac- 
complish next  to  nothing. 

f*~  Man  has  an  insatiable  desire  to  possess  and  use  the 
/  forces  of  nature  and  to  control  his  fellows,  but  alone  he 
V  can  barely  maintain  a  precarious  life.  Hence,  there  is 
an  incessant  balancing  between  cfesires  and  the  means  of 
gratifying  them.  An  uncontrollable  instinct  compels 
men  to  supplement  themselves  with  the  forces  of  others 
in  social  life,  and  the  more  civilized  a  community  is, 
necessarily  the  more  dependent  are  its  members  on  one 
another.  In  truth,  the  individual  civilized  man,  instead  of 
being  the  most  self-sufficing  of  animals,  is  the  most  one- 
sided and  incomplete.  One  may  say  that  the  more  self- 
sufficing  he  becomes,  the  nearer  he  approaches  the  ani- 


THE  NATION.  13 

mal  condition.  Pioneer  life,  therefore,  is  uncivilizing. 
Men  become  self-dependent,  but  they  take  on  a  good 
deal  of  the  savage.  Where  this  instinct,  if  such  it  may  be 
called,  or  disposition  to  fusion  in  a  social  group,  is  most 
decided,  there  are  the  elements  of  the  greatest  progress. 
It  was  this  irresistible  bias  which  undoubtedly  pushed  the 
Greeks  so  rapidly  along  in  their  political  development. 
Of  course,  there  were  other  inherent  qualities,  coupled 
with  advantages  of  geographical  position,  which  must  be 
counted,  but  the  social  impulse  was  one  of  the  most 
potent  civilizing  factors.  The  wonderful  political  organ- 
ization and  stability  of  the  Romans,  is  largely  due  to  the 
sinking  of  the  individual  in  the  tribe,  and  eventually  in 
the  state. 

Lieber  *  deprecates  the  view  of  the  ancients,  that  man 
appears  in  his  highest  and  noblest  character  when  con- 
sidered as  a  member  of  the  state  or  as  a  political  being. 
He  esteems  it  to  be  on  a  much  lower  plane  than  the 
modern  sentiment  which  looks  to  individual  rights,  and 
seeks  the  highest  aim  of  civil  liberty  in  the  most  efficient 
perfection  of  individual  action,  endeavor,  and  rights.  It 
may  be  conceded  that  the  modern  conception  is  the 
nobler ;  but  judging  ideas  by  what  they  accomplish  in 
lifting  up  the  race,  we  must  surely  admit  that  the  expan- 
sion and  firm  holding  of  the  blood  tie  and  tribal  idea, 
and  its  development  into  the  state  idea,  together  with  the 
sinking  of  the  individual  into  the  community,  lent  an 
immense  consolidating  and  invigorating  force  in  develop- 
ing ancient  civilization.  It  produced  what  was  then 
necessary,  and  without  which  modern  civilization  would 

"  Civil  Liberty  and  Self-Government,"  chap.  iv.  See  on  this 
point  the  introductory  chapters  to  Stein,  "  Der  Begriff  der  Gesell- 
schaft  und  die  sociale  Geschichte  der  franzosischen  Revolution." 
Leipzig,  1855,  especially  at  pp.  13  and  17. 


14  POLITICS. 

not  be  what  it  is,  a  powerful,  organized  state,  able  to 
hold  its  own,  and  finally  win,  in  the  universal  war  of 
mankind. 

Medieval  ideas  liberated  the  individual  man  from  the  clan, 
transferred  him  to  a  class,  and,  among  the  lower  orders, 
attached  him  to  the  land.  He  became  either  a  noble  of 
greater  or  less  degree,  a  burgher,  if  a  resident  within  a 
city,  or  a  peasant  and  villain,  if  living  without  the  city 
gates.  Social  life  was  distributed  in  a  series  of  circles. 
The  corporate  sentiment  found  expression  in  the  several 
distinct  classes  ;  and  in  the  cities,  in  the  guilds ;  every 
man  was  fitted  into  some  distinct  class.  The  broad 
national  sentiment  which  had  grown  in  the  latter  days  of 
the  Roman  republic  and  in  the  earlier  days  of  the  empire 
had  been  contracted  into  these  narrow  bounds.  It  was 
almost  in  abeyance.  The  great  political  transition  which 
was  going  on  was  twofold — towards  attaching  political 
sovereignty  to  a  particular  territory  and  towards  individ- 
uality, or,  contrasted  with  the  old  idea,  the  separation  of 
the  individual  from  the  great  family  in  which,  theoreti- 
cally, he  was  supposed  to  be  sunk. 

The  danger  which  threatened  Europe  for  ten  centuries 
was  that  classes  would  harden  into  castes,  and  thus  pre- 
vent that  fusion  of  all  conditions  of  men  which  is  neces- 
sary to  progress.  Fortunately,  various  causes  operated  to 
break  down  the  noble  classes,  and  to  elevate  the  villains. 
Hallam  ascribes  the  decay  of  the  feudal  system  to  the  in- 
creasing power  of  the  crown,  the  abolition  of  villanage, 
the  increase  of  commerce,  and  especially  the  institution 
of  free  cities  and  boroughs,  and,  thirdly,  to  the  decay  of 
the  feudal  principle. 

He  says,  however  :  "  If  we  look  at  the  feudal  polity  as 
a  scheme  of  civil  freedom,  it  bears  a  noble  countenance. 
To  the  feudal  law  it  is  owing  that  the  very  names  of  right 


THE   NATION.  15 

and  privilege  were  not  swept  away,  as  in  Asia,  by  the 
desolating  hand  of  power."  And  further:  "So  far  as 
the  sphere  of  feudality  extended,  it  diffused  the  spirit  of 
liberty,  and  the  notions  of  private  right."  The  increasing 
power  of  the  crown  carried  with  it  the  widening  of  the 
spirit  of  nationality,  from  the  petty  bounds  of  the  duke- 
dom or  margravate  to  the  kingdom  and  empire,  and  the 
elevation  of  the  villain,  and  of  the  middle  or  burgher  class, 
sapped  the  strength  of  the  nobility.  The  monarch  and 
the  common  people  have  been  the  upper  and  the  nether 
millstones  between  which  the  aristocracy  has  been 
crushed. 

The  great  political  fact  of  the  modern  era  is  the  forma- 
tion of  nations.  Men  are  being  liberated  from  classes 
and  fused  into  the  nation.  This  readjustment  is  proceed- 
ing with  varying  degrees  of  activity  and  vigor  in  different 
parts  of  the  progressive  world.  At  what  time  this  new 
political  era  can  be  said  to  have  begun  is  often  debated. 

The  question  is  apt  to  be  answered  by  each  individual 
according  to  the  point  of  view  from  which  he  surveys  the 
past.  If  from  the  standpoint  of  Protestantism,  it  will  be 
placed  at  the  Reformation  ;  if  the  bias  is  towards  philos- 
ophy or  esthetics,  it  will  be  pushed  back  to  the  revival  of 
Greek  learning  and  the  new  impulse  in  art,  in  the  fifteenth 
and  sixteenth  centuries  ;  while  the  political  inquirer,  if  an 
Englishman,  will  say  at  the  deposition  of  James  II.  in 
1688  ;  if  a  Continental  liberal,  at  the  revolution  of  1789. 
Bluntschli  dates  it  from  1740,  because  after  that  period 
the  Prussian  kingdom  arose,  the  liberal  changes  of  Fran- 
cis Joseph  in  Austria  were  attempted,  the  American  union 
was  formed,  the  French  revolution  occurred,  the  Napole- 
onic empire  was  established,  constitutional  monarchy  was 
transplanted  from  England  to  the  Continent,  representa- 
tive democracy  was  introduced,  national  states  were  estab- 


1 6  POLITICS. 

lished,  Church  and  State  were  separated  in  administration, 
feudalism  and  class  privileges  were  set  aside,  and  the  con- 
ception of  national  unity  was  developed. 

We  cannot,  however,  separate  eras  by  absolute  dates. 
The  ideas  and  ideals  which  rule  in  one  run  over  into  the 
other,  and  their  influence  extends  down  with  gradually 
fading  power  for  generations,  and  with  varying  intensity 
in  different  classes  of  society,  or  on  different  tempera- 
ments in  the  several  classes.  There  are  large  bodies  of 
people  even  yet,  and  certainly  many  individuals,  who  are 
substantially  of  the  medieval  type  in  views  and  tendencies. 
We  can  only  say  that  the  set  is  in  a  different  direction 
now  from  what  it  was  two  hundred  years  ago  ;  or  per- 
haps, it  is  better  to  say,  the  point  of  view  of  the  thinkers 
of  this  age,  as  to  the  relations  of  men  to  each  other  and 
to  the  world,  as  to  man's  place  in  nature  and  among  his 
fellows,  is  essentially  different  from  what  it  was  at  that 
time.  The  whole  intellectual  horizon  has  been  vastly  ex- 
panded and  illumined  with  a  clearer  light  than  formerly. 

The  growth  of  the  national  sentiment  has  been  very 
marked  since  the  middle  of  the  last  century.  It  is  not 
the  result  of  one  cause,  but  of  all  the  causes  which  have 
been  stimulating  civilization  ever  since  the  decay  of  the 
feudal  system.  These  influences  have  tended  to  increase 
the  desires  of  men,  and  to  enlarge,  necessarily,  the  num- 
ber of  demands  to  satisfy  them.  It  is  a  matter,  it  is  true, 
which  must  rest  almost  wholly  in  assertion,  because  it  is 
extremely  difficult  to  prove,  but  it  can  hardly  be  doubted 
that  the  average  man  of  to-day,  in  any  of  the  progressive 
communities,  has  a  larger  susceptibility  to  pleasure  and 
pain  than  his  ancestor  of,  say,  two  centuries  since.  If 
this  is  so,  then  the  man  of  to-day  has  greater  self-con- 
sciousness, because  it  is  in  proportion  to  our  points  of 
contact  with  mind  and  matter  exterior  to  ourselves 


THE   NATION.  I/ 

that    this    mysterious    attribute    of    our    nature    gains 
strength. 

It  is  certainly  true  that  the  lower  races  have  a  less  sensi- 
tive physical  organization  than  the  superior,  and  along 
with  this  they  have  less  resisting  power  to  disease.  As  a 
race  develops,  not  only  its  physical,  but  also  its  mental 
structure,  takes  on  a  finer  temper.  A  growing  sensitive- 
ness to  pain  is  accompanied  by  an  increasing  indisposition 
to  seeing  it  inflicted  upon  others.  Most  men  become 
merciful,  one  may  say,  through  their  nervous  organiza- 
tions and  their  imaginations,  so  that  the  character  and 
number  of  punishments  inflicted  by  law  furnish  a  very 
fair  test  of  the  susceptibility  of  a  people  in  this  respect. 
A  hundred  years  ago  it  was  no  uncommon  thing  for  a 
dozen  men  and  women  to  be  condemned  to  death  at  one 
sitting  of  a  court,  for  ordinary  robberies  and  felonies,  and 
"hanging  day  "  was  a  gala  day  for  the  multitude.  Going 
back  a  hundred  years  earlier  we  find  the  thumb-screw  and 
boot  in  common  use.  The  "question,"  as  it  was  called, 
was  then  applied  in  a  variety  of  ways.  There  was  the 
"preparatory  question,"  which  had  come  down  from  the 
Roman  law  of  the  time  of  the  emperors.  This  was  the 
torture  applied  to  persons  accused  of  crime ;  it  was  not 
viewed  as  a  punishment,  but  only  as  an  energetic  mode 
of  procedure  to  obtain  information,  and  was  in  general 
usage  all  over  Europe  from  about  the  beginning  of  the 
fourteenth  century,  except  in  England,  though  in  that 
country  it  was  occasionally  resorted  to.  Gradually  it  died 
out,  and,  when  it  had  almost  entirely  ceased  in  practice, 
was  formally  abolished  in  France  by  Louis  XVI.  in  1780. 
The  "definitive  question  "  was  torture  applied  to  the  con- 
demned criminal  in  order  to  compel  him  to  disclose  his 
accomplices,  and  was  continued  later,  until  abolished  by  the 
National  Assembly.  It  was  justified  by  a  leading  French 


1 8  POLITICS. 

jurist  on  the  ground  that  ' '  the  accused  has  no  motive  to 
conceal  the  truth,  and  besides  there  is  not  much  care  to 
be  taken  of  a  body  confiscated,  and  which  is  going  to  be 
executed."  Then,  and  later,  the  infliction  of  death  was 
not  sufficient ;  it  was  necessary  to  accompany  it  with 
quartering  and  other  barbarities,  in  order  to  impress  the 
imaginations  of  a  populace  which  required  more  than  the 
mere  contemplation  of  the  extinction  of  existence. 

If  the  general  physical  tone  of  to-day  is  on  a  higher 
pitch,  so  also  is  the  mental.  This  pitch  makes  us  more 
susceptible  to  the  harmonies,  and  alas  !  also,  to  the  dis- 
cords of  life.  But,  on  the  other  hand,  it  gives  to  the 
general  life  more  fullness,  more  variety.  As  suggested,  it 
has  increased  self-consciousness,  and,  necessarily  as  the 
outgrowth  of  this,  a  more  intense  longing  for  the  satisfac- 
tion of  desire.  During  this  era  the  desires  of  men  have 
increased  prodigiously,  and  what  is  often  called  the  "un- 
rest "  of  the  age  is  merely  the  effort  of  the  multitude  to 
balance  these  desires  with  the  means  for  enjoyment.  In 
a  progressive  society  this  effort  is  constantly,  in  a  greater 
or  less  degree,  producing  fermentation.  In  such  a  society 
a  hundred  years  may  decidedly  change  the  quality  of  a 
people,  so  that,  though  apparently  the  same,  they  are 
really  different. 

Quality,  in  a  people,  comes  from  all  the  influences 
which  go  to  make  up  their  civilization  at  any  given  period 
of  time,  acting  upon  certain  inherent  race  or  stock  traits. 
The  "  strain  "  in  the  Indo-Germanic  race  is  finer  than  it 
was  two  centuries  ago  ;  just  as  it  is  better  to-day  in  the 
winner  of  the  Derby  than  it  was  in  the  Godolphin 
Arabian.  If  this  be  true,  then  it  is  impossible  to  draw 
exact  parallels  between  the  men  of  to-day  and  those  of 
this  earlier  period. 

We  may  truly  say  that  certain  things  in  human  nature 


THE  NATION.  19 

have  always  been  the  same.  True,  the  instrument  has 
the  same  number  of  strings,  but,  like  an  old  Stradivarius 
violin,  it  is  the  same,  but  yet  not  the  same,  that  it  was 
when  new ;  the  tones  are  richer,  fuller,  indescribably 
sweeter  and  more  sympathetic. 

It  is  this  varying  quality  in  the  race  which  introduces 
an  intangible  quantity  into  the  social  problem,  and  warns 
us  not  to  attempt  its  solution  exclusively  through  a  sur- 
vey of  the  past.  And  further,  it  leads  one  to  condemn 
that  very  common  habit  of  multiplying  instances,  of  cus- 
toms, observances,  of  methods  of  government  among  ex- 
isting savage  tribes  as  indicating  the  past  evolution  of  the 
progressive  race  ;  a  method  which  certainly  is  liable  to 
mislead  in  investigating  the  present  structure  of  society, 
because  the  probabilities  are  strong  that  the  impulses  of 
continuous  change,  which  at  some  periods  affect  even 
the  rudest  tribes,  may  have  carried  them  very  far  away 
from  the  common  starting-point.  Because  we  find  that 
at  the  present  time  the  Papuans  or  Zulus  have  certain 
customs,  we  are  not  justified  in  jumping  to  the  conclusion 
that  our  remote  ancestors  had  similar  ones.  Whenever 
there  are  distinct  traces  of  similar  institutions  pervading 
the  infancy  of  society,  and  surviving  in  communities 
which  we  know  to  have  a  history,  and  which  are  now, 
evidently,  in  a  condition  of  arrested  development,  we  are 
on  safe  ground,  and  may  then  profitably  enter  into  a 
comparative  study  of  customs  and  laws. 

An  instance  in  point  is  found  in  the  universal  existence 
at  certain  stages  of  social  development  of  community  prop- 
erty in  land.  This  fact  is  so  well  attested  that  we  can 
affirm  without  hesitation  that  it  is  a  necessary  incident 
in  the  advance  to  a  higher  civilization. 

So,  also,  when  we  find  that  at  all  times  the  individuals 
of  the  human  race  have  been  fused  into  distinct  groups  of 


20  POLITICS. 

greater  or  less  magnitude,  we  can,  without  hesitation, 
treat  it  as  a  fundamental  fact,  indicating  a  universal  law 
or  condition  of  social  existence. 

At  this  point,  however,  the  variations  commence,  not 
only  in  manifestations  of  this  great  fact,  but  more  espe- 
cially in  the  direction  and  character  of  the  changes  within 
each  group.  Prince  Schwarzenberg,  the  shrewd  minister 
of  the  present  Austrian  emperor  in  the  first  years  of  his 
reign,  was  accustomed  to  say  :  "  I  can  learn  nothing 
from  history/'  There  was  a  grain  of  truth  in  this  extrava- 
gant assertion.  While  we  can,  undoubtedly,  learn  much, 
we  cannot  learn  everything  from  it.  We  can  see  from 
its  records  that  the  passions  of  men  have  always  been  sub- 
stantially the  same,  but  the  infinite  possibilities  of  develop- 
ment, and  the  tendency  which  a  new  modification  may 
produce,  are  beyond  its  teachings.  The  first  Napoleon 
remarked  that  "the  passions  form  the  great  elements  of 
calculation,  at  the  same  time  they  defy  all  human  sagac- 
ity." These  passions  may  be  so  tempered  with  physical, 
intellectual,  and  moral  change,  as  to  produce,  as  we  see, 
in  one  direction,  an  Anglo-Saxon  of  the  nineteenth  cent- 
ury, and  in  another,  his  contemporary  and  -antagonist, 
a  degraded  Ashantee  ;  or,  what  is  more  in  poin.,  may 
at  one  time  produce  a  certain  average  quality  of 
man,  and  a  couple  of  centuries  later  quite  a  different 
quality. 

Hence  it  is  that  each  age  has  what  is  called  its 
"  spirit ;  "  and  the  true  vocation  of  history  is  to  imbue  us 
with  the  spirit,  the  temper,  the  quality  of  the  age  which 
it  pictures.  We  can,  unquestionably,  gather  this  general 
assurance,  that  there  is  an  "increasing purpose  "  running 
through  all  the  ages,  which,  selecting  certain  people  for 
progress,  urges  them  on  irresistibly  to  a  higher  develop- 
ment. These  peoples  move  along  in  general  harmony, 


THE  NATION. 


v 


so  that  we  see  among  them  a  certain  uniformity  and  like- 
ness in  social  movements.  The  expansion  of  desire  as 
the  result  of  increased  sensitiveness  leads,  necessarily,  to 
enhanced  mental  activity,  and  by  natural  sequence  to  a 
greater  longing  for  freedom  of  action  ;  for  the  expression 
of  mental  activity  can  be  had  only  through  mobility  and 
variety  in  thought  and  deed.  The  increase  of  thought, 
the  increase  of  desire,  the  increase  of  susceptibility,  pro- 
duce a  great  pressure  upon  the  means  and  instrumentali- 
ties of  satisfaction  :  and  as  the  individual  becomes  more 
self-conscious,  he  at  the  same  time  feels  more  acutely  his 
inability  to  satisfy,  by  his  own  efforts,  these  growing  de- 
mands, and  thus  he  is  unconsciously  more  and  more  im- 
pelled to  supplement  his  own  feeble  powers  with  those  of 
the  members  of  the  society  in  which  he  lives. 

Hence,  the  tendency  of  civilization  is  to  increase  indi- 
vidual wants  out  of  proportion  to  the  capacity  of  the  in- 
dividual to  satisfy  them,  unless  aided  by  his  fellows  ;  and 
the  result  of  this  growing  inability  is  the  division  of  labor 
and  the  specialization  of  pursuits,  because  a  very  little  ex- 
perience teaches  a  man  that  he  can  accomplish  more  in 
any  field  of  activity,  whether  of  thought  or  deed,  by  de- 
voting himself  to  one  special  demand  of  very  many,  rather 
than  to  all  the  demands  of  one,  even  if  that  one  be  him- 
self. Following  this  out,  it  needs  but  a  moment's  reflec- 
tion to  perceive  that  in  the  ratio  of  the  specialization  of 
pursuits  do  men  become  more  interdependent.  Separate 
a  man  from  society  and  he  would  wither  and  die,  because 
there  would  be  subtracted  from  him  the  greater  part  of 
what  he  really  is. 

While  these  considerations,  however,  apply  to  social 
growth  in  general  —  to  the  whole  of  society  —  still  they 
apply  to  the  nation  also,  which  is  a  part  of  the  whole. 
Increase  the  desires  of  men  in  any  way,  either  by  stimu- 


22  POLITICS. 

lating  their  intellectual  powers,  or  by  increasing  their 
wealth,  or  by  improving  their  tastes,  and  they  will  be  irre- 
sistibly impelled  to  set  about  enlarging  the  area  from 
which  they  can  draw  satisfaction  for  them.  Or,  to  be 
more  precise,  they  will  call  into  play  new  activities  in 
other  men,  and  will  be  dependent  upon  a  larger  number 
of  them  than  before,  in  order  to  obtain  the  satisfaction 
desired.  We  can  readily  understand  how  this  would  be 
the  result  in  the  growth  of  physical  desires,  but  it  is 
equally  true  as  a  concomitant  of  the  increase  of  intel- 
lectual and  emotional  desires.  These  influences  act 
directly  on  social  groups,  and  lead  to  their  enlargement  01 
fusion. 

War  has  been,  heretofore,  a  potent  agent  in  enlarging 
or  fusing  social  groups.  A  mountainous  country  will 
afford  retreats  to  small  .tribes  and  protect  them  in  their 
independence.  This  was  the  case  for  a  long  time  in 
Greece  and  Switzerland.  But  improve  road-making,  in- 
troduce railroads,  and  it  is  like  leveling  the  mountains  ; 
not  only  armies,  but  new  ideas  and  sympathies,  can  be 
poured  in.  The  enemy  can  come  from  a  greater  distance 
in  larger  numbers,  and  there  becomes  an  immediate  need 
of  the  union  of  detached  communities  into  one,  or  an 
alliance  with  a  stronger  power.  Where  the  country  is 
open,  and  by  means  of  railroads  and  steamships  troops 
can  be  rapidly  concentrated  by  an  enemy  and  marched 
into  the  centre  of  the  land,  there  will  be  need  of  a  stronger 
union  of  all  the  parts  of  the  exposed  country,  and  of  an 
increase  in  the  standing  army.  We  have  a  striking  illus- 
tration of  this  impulse  to  union,  in  consequence  01  in- 
creased dangers  arising  from  improved  means  of  attack, 
in  the  case  of  the  new  German  Empire,  though,  perhaps, 
it  is  putting  it  upon  rather  narrow  ground  to  exclude  in- 
tellectual and  general  economical  causes. 


THE   NATION.  23 

Every  nationality  comes  to  have  its  own  type.  The 
American,  the  Englishman,  the  Frenchman,  the  German, 
the  Italian,  the  Russian,  has  each  his  own  national  mark 
upon  his  face,  and  in  his  style  and  gait.  Diversities  of 
climate  and  soil  will  not  explain  it.  Between  the  Atlantic 
Ocean  and  the  Ural  Mountains,  on  the  same  parallel,  the 
varieties  of  these  are  not  sufficiently  numerous  to  produce 
the  different  types  which  the  most  careless  traveler  detects. 
And  though,  as  between  different  sections  of  the  same 
country,  there  may  be  marked  diversities  of  soil  and 
climate,  yet  there  will  still  be  exhibited  the  general  na- 
tional type,  with  minor  variations.  The  distance  between 
the  northern  and  southern  limits  of  the  United  States  is 
as  great  as  between  Edinburgh  and  Gibraltar,  or  between 
Stockholm  and  Naples,  and  the  line  between  Portland, 
Maine,  and  San  Francisco  is  as  long  as  from  Paris  to  a 
point  one  hundred  and  fifty  miles  east  of  Moscow ;  and 
yet  on  the  European  side  the  area  mentioned  will  present 
a  dozen  different  well-marked  national  types,  while  in  the 
United  States  there  is  really  but  one  national  type ;  yet, 
strange  to  say,  cross  the  line  into  Canada,  and  you  find  a 
variation.  Mere  physical  environment,  or  even  what  are 
accounted  race  differences,  will  not  explain  national  ex- 
pression. There  is  a  subtle  something  which  indicates 
the  oneness  of  the  national  being. 

It  may  be  answered,  as  to  the  United  States,  that  the 
settlement  of  the  country  west  of  the  Alleghanies  is  too 
recent  to  admit  of  variation  ;  but  how  is  it  that  the  first 
generation  born  on  the  soil,  of  European  parents,  exhib- 
its marked  American  characteristics?  And  this  is  more 
prominently  the  case  with  the  children  born  in  the  densely 
populated  parts  of  the  country  than  with  those  born  in 
the  remoter,  sparsely  settled  sections.  The  truth  is, 
the  national  soul  or  spirit  or  character,  or  whatever 


24  POLITICS. 

we  may  call  it,  instantly  sets  its  stamp  upon  the  new- 
comer, and  incorporates  him  into  the  great  national 
being.* 

Herbert  Spencer  lays  it  down  as  a  cardinal  law,  that 
social  evolution  is  from  the  homogeneous  to  the  hetero- 
geneous, but  it  would  seem  that  there  is  a  double  process 

*  Walter  Bagehot,  in  "  Physics  and  Politics,"  especially  in  the 
chapter  on  "  Nation-making/'  has  called  attention  to  this  question. 
' '  Climate,"  he  says,  "  is  clearly  not  the  force  which  makes  nations, 
for  it  does  not  always  make  them,  and  they  are  often  made  with- 
out it.  The  problem  of  nation-making— that  is,  the  explanation  of 
the  origin  of  nations  such  as  we  now  see  them,  and  such  as  in  his- 
torical times  they  have  always  been — cannot,  as  it  seems  to  me,  be 
solved  without  separating  it  into  two  :  one,  the  making  of  broadly 
marked  races,  such  as  the  negro,  or  the  red  man,  or  the  European  ; 
and  the  second,  that  of  making  the  minor  distinctions,  such  as  the 
distinction  between  Spartan  and  Athenian,  or  between  Scotchmen 
and  Englishmen.  Nations,  as  we  see  them,  are  (if  my  arguments 
prove  true)  the  produce  of  two  great  forces  :  one,  the  race-making 
force,  which,  whatever  it  was,  acted  in  antiquity,  and  has  now 
wholly,  or  almost,  given  over  acting  ;  and  the  other,  the  nation- 
making  force,  properly  so  called,  which  is  acting  now  as  much  as 
it  ever  acted,  and  creating  as  much  as  it  ever  created."  And  in 
dealing  with  the  second  problem  he  lays  stress  on  "  what,"  as  he 
says,  "  every  new  observation  of  society  brings  more  and  more 
freshly  to  myself— that  this  unconscious  imitation  and  encourage- 
ment of  appreciated  character,  and  this  equally  unconscious  shrink- 
ing from  and  persecution  of  disliked  character,  is  the  main  force 
which  moulds  and  fashions  men  in  society  as  we  now  see  it."  He 
would,  moreover,  "  show  that  the  more  acknowledged  causes,  such 
as  change  of  climate,  alteration  of  political  institutions,  progress  of 
science,  act  principally  through  this  cause ;  that  they  change  the 
object  of  imitation  and  the  object  of  avoidance,  and  so  work  their 
effect."  In  thus  giving  great  weight  to  "  the  imitation  of  appreci- 
ated habit  and  the  persecution  of  detested  habit,"  he  does  not  fail 
to  recognize  also  the  power  of  heredity,  by  which  "  the  mind  of  the 
parent  (as  we  speak)  passes  somehow  to  the  body  of  the  child,"  jr  >. 
86-106. 


THE  NATION.  2$ 

going  on  ;  that  the  tendency  is  to  heterogeneity  in  social 
groups,  but  to  homogeneity  within  each  of  them.  It  is 
true  that  up  to  a  certain  point  a  number  of  like  groups 
will  tend  to  flow  together  and  separate  sharply  from  the 
conglomerate  group,  but  along  with  it  there  is  developed 
a  centripetal  force,  acting  within  the  separate  group,  tend- 
ing to  fusion  of  all  its  elements.  When  the  social  group 
has  been  politically  segregated,  a  cohering  force  imme- 
diately begins  to  work  upon  the  old,  repellent  groups  of 
which  it  is  composed.  The  inherent  repulsion  of  the 
minor  groups  to  each  other  is  the  centrifugal  force.  Thus 
two  opposing  forces  contest  for  supremacy  in  the  new 
nation  ;  whether  the  one  or  the  other  will  eventually  gain 
the  mastery  depends,  of  course,  upon  such  a  variety  of 
circumstances  as  to  render  the  outcome,  often  for  a  long 
period,  a  matter  of  doubt.  If,  happily,  the  nation  be- 
comes a  homogeneous  unit,  we  see  it  stamped  with  its 
own  intellectual  and  moral  traits,  and  even  with  its  own 
physical  characteristics,  as  already  suggested. 

It  may  be  asked,  of  what  value  is  it  to  arrive  at  even 
the  most  exact  conception  of  what  a  nation  is  ?  and  it 
may  be  added,  that  for  living  active  men,  it  is  more 
necessary  to  know  what  to  do  than  to  know  what  we  are. 
But  this  is  essentially  a  short  view  of  things.  We  are 
only  really  prepared  to  know  what  to  do  when  we  have 
exact  knowledge  of  what  we  are.  Especially  is  this  so  in 
all  governmental  matters.  If  men  understand  their  true 
relations  to  each  other  and  to  the  whole  body  politic, 
they  are  better  prepared  to  legislate  on  correct  principles  ; 
they  then  discover  not  only  the  scope  of  their  duties,  but 
also  the  limitations  beyond  which  they  cannot  success- 
fully act.  The  time  has  arrived  when  we  should  con- 
sider national  rights  as  carefully  as  we  have  studied  and 
protected  individual  rights.  The  effort  for  centuries  has 


26  POLITICS. 

been,  more  especially  in  England  and  on  this  continent, 
to  place  individual  political  rights  upon  firm  ground, 
where  they  can  be  clearly  seen  and  defined.  The  "  lib- 
erty of  the  subject "  has  been  the  chief  object  of  solicitude. 
At  first  it  was  to  protect  him  from  the  king  ;  now  it  is  to 
save  him  from  the  tyrannical  majority.  We  have  estab- 
lished these  rights  firmly  in  Bills  of  Right,  and  written 
constitutions.  We  have,  in  truth,  gone  so  far  in  this 
direction,  that  the  corresponding  obligations  arising  out 
of  these  "rights"  are  somewhat  lost  sight  of.  Indeed, 
the  doctrines  of  personal  freedom  have  been  pushed  to 
their  remotest  consequences.  We  see  it  in  the  accepted 
dogmas  of  the  political  economy  of  the  English  school, 
which  preaches  free  competition  as  the  true  end  of  all 
economic  .legislation,  and  in  the  laissez-faire  doctrine  in 
politics.  There  is  this  to  be  said,  however,  that  no  gov- 
ernment has  ever  acted  up  to  the  extreme  limits  of  these 
doctrines,  nor  probably  ever  will.  At  bottom,  there  is 
in  every  nation  a  sub-consciousness  that  the  general 
good  must  override,  in  many  cases,  what  are  deemed 
indefeasible  personal  rights.  Politically,  then,  the 
nation  is  the  prime  fact  in  our  consideration  ;  the 
individuals  and  communities  forming  it  are  secondary 
facts.* 

*  Prominent  among  American  books  in  which  this  view  of  the 
nation  is  emphasized  is  Mulford's  The  Nation,  New  York,  1875. 
"  The  nation  is  an  organism.  It  has  an  organic  unity  ;  it  is  de- 
termined in  an  organic  law,  and  constitutes  an  organic  whole." 
It  "is  shaped  by  no  external  force,  but  by  an  inner  law."  It  "  has 
the  characteristics  of  every  organism — unity  and  growth  and  iden- 
tity of  structure  "  (p.  99).  Savigny,  looking  at  the  nation  as  the 
source  of  positive  law,  considers  that  if  in  our  contemplation  of 
legal  relations  we  abstract  all  that  is  peculiar  in  them,  there  still 
remains  this  broad  fact  of  the  living  together  of  many  persons 
whose  relations  are  regulated  in  a  fixed  manner.  We  might,  in 


THE  NATION.  2? 

general,  adhere  to  this  abstract  conception  of  a  majority,  and 
think  of  law  as  an  invention  of  this  majority,  without  which  the 
external  freedom  of  no  single  person  could  exist.  But  such  an 
accidental  assemblage  of  an  indeterminate  crowd  is  an  arbitrary 
idea  entirely  lacking  in  truth.  And  if  such  a  crowd  should  actually 
find  itself  assembled  it  would  inevitably,  be  wanting  the  capacity  to 
create  laws,  since  the  power  to  satisfy  the  need  of  laws  is  not  given 
at  the  same  time  with  the  need  itself.  In  fact,  however,  we  find 
everywhere  where  men  live  together,  so  far  as  history  informs  us, 
their  relation  to  one  another  is  that  of  a  community  of  intellectual 
interests,  which  not  only  makes  itself  manifest,  but  also  strengthens 
and  perfects  itself,  through  the  use  of  a  common  language.  Within 
this  natural  unity  is  the  seat  of  creative  law  ;  for  in  the  common 
national  spirit,  penetrating  the  individuals,  may  be  found  the 
power  of  satisfying  the  above  recognized  need. 

The  limits  of  tnese  individual  nations  are  indefinite  and  fluctuat- 
ing, and  this  uncertain  condition  manifests  itself,  moreover,  in  the 
oneness  or  diversity  of  the  laws  formed  in  them.  Thus,  it  may 
appear  doubtful,  in  the  case  of  kindred  tribes,  whether  they  should 
be  considered  by  us  as  one  nation  or  several  ;  in  like  manner  we 
also  often  find  in  their  laws  similarity,  although  not  entire  agree- 
ment. 

But,  moreover,  wherever  the  oneness  of  a  nation  is  undoubted, 
tliere  are  often  found  within  its  limits  narrower  circles,  which,  by 
the  side  of  the  general  features  of  the  national  life,  are  united  by  a 
peculiar  connection,  as  cities,  villages,  guilds,  and  corporations  of 
all  kinds,  which  together  form  popular  divisions  of  the  whole. 
Within  these  smaller  circles,  again,  what  is  known  as  particular 
law  may  take  its  origin,  by  the  side  of  the  common  national  law. 
and,  in  many  respects,  may  supplement  and  change  this  common 
law. 

But  if  we  consider  the  nation  as  a  natural  unit,  and  also  as  the 
bearer  of  the  positive  law,  we  should  not  thereby  think  merely  of 
the  individuals  contained  in  it  ;  we  should  rather  consider  that  this 
unity  exists  between  the  different  families,  and  binds  the  present 
to  the  past  and  the  future.  The  continued  maintenance  of  law 
is  effected  by  tradition,  which  is  conditioned  and  founded  through 
the  gradual  succession  of  generations. 

This  view,  which  recognizes  the  individual  nation  as  the  creation 
and  bearer  of  positive  or  actual  law,  may  appear  too  limited  to 


28  POLITICS. 

many  who  might  be  inclined  to  ascribe  the  creation  of  positive  law 
rather  to  the  general  spirit  of  humanity  than  to  the  individual  spirit 
of  the  nation.  Upon  a  closer  examination,  however,  the  two  views 
do  not  appear  to  be  in  opposition.  That  which  operates  in  the 
individual  nation  is  only  the  general  spirit  of  humanity,  manifest- 
ing itself  in  the  nation  in  a  special  manner.  But  the  creation  of 
law  is  an  act,  and  an  act  of  the  community.  It  is  conceivable  only 
of  those  among  whom  a  community  of  thought  and  action  is  not 
only  possible  but  really  exists.  Since  now  such  a  community  is 
present  only  within  the  limits  of  the  single  nation,  so  only  there 
can  real  law  be  evolved,  although  in  the  formation  of  the  law 
the  expression  of  a  general  human  formative  impulse  is  to  be 
perceived. 

There  exists  in  the  nation  an  irresistible  impulse  to  manifest  its 
invisible  unity  in  an  organic  visible  form.  This  bodily  manifesta- 
tion of  the  intellectual  community  of  the  nation  is  the  state.  If, 
then,  we  inquire  as  to  the  origin  of  the  state,  we  shall  be  obliged 
to  place  it  in  a  supreme  necessity,  in  a  force  working  from  within, 
as  already  indicated,  in  general,  in  the  case  of  law.  And  this  ob- 
tains not  merely  with  reference  to  the  being  of  a  state  in  general, 
but  also  with  reference  to  the  peculiar  form  which  the  state  bears 
in  each  nation.  For  the  creation  of  a  state  is  a  species  of  law- 
making  ;  it  is,  indeed,  the  final  step  in  the  creation  of  law.  See 
System  des  heutigen  romischen  Rechts,  Berlin,  1840,  I.,  18-22, 
28-32  ;  also  Stahl,  Die  Philosophic  des  Rechts  nach  geschichtlicher 
Ansicht,  Heidelberg,  1833,  II.  109-114. 

In  the  Fortnightly  Review  for  August,  1883,  Frederick  Pollock 
thus  summarizes  the  views  of  Aristotle  concerning  the  nature  of  the 
state  :  "  A  state  is  a  community,  and  every  community  exists  for 
the  sake  of  some  benefit  to  its  members  (for  all  human  action  is  for 
the  sake  of  obtaining  some  apparent  good) :  the  state  is  that  kind  of 
community  which  has  for  its  object  the  most  comprehensive  good. 
The  state  does  not  differ  from  a  household,  as  some  imagine,  only 
in  the  number  of  its  members.  We  shall  see  this  by  examining 
its  elements.  To  begin  at  the  beginning,  man  cannot  exist  in  soli- 
tude ;  the  union  of  the  two  sexes  is  necessary  for  life  being  continued 
at  all,  and  a  system  of  command  and  obedience  for  its  being  led  in 
safety.  Thus  the  relations  of  husband  and  wife,  master  and 
servant,  determine  the  household.  Households  coming  together 
make  a  village  or  tribe.  The  rule  of  the  eldest  male  of  the  house- 


THE  NATION.  29 

hold  is  the  primitive  type  of  monarchy.  Then  we  get  the  state  as 
the  community  of  a  higher  order  in  which  the  village  or  tribe  is  a 
unity.  It  is  formed  to  secure  life,  it  continues  in  order  to  improve 
life.  Hence — and  this  is  Aristotle's  first  great  point — the  state  is 
not  an  affair  of  mere  invention.  It  is  the  natural  and  necessary 
completion  of  the  process  in  which  the  family  is  a  step.  The 
family  and  the  village  community  are  not  independent  or  self-suffi- 
cient ;  we  look  to  the  state  for  an  assured  social  existence.  The  state 
is  a  natural  institution  in  a  double  sense  :  first,  as  imposed  on  man 
by  the  general  and  permanent  conditions  of  his  life  ;  then  it  is  the 
only  form  of  life  in  which  he  can  do  the  most  he  is  capable  of. 
Man  is  born  to  be  a  citizen — "AvQpGOTtoS  cpvdei  itoXirinov  £(£or. 
There  is  hardly  a  saying  in  Greek  literature  so  well  worn  as  this : 
nor  is  there  any  which  has  worn  better,  or  which  better  deserved 
to  become  a  proverb.  It  looks  simple  enough,  but  it  is  one  of  the 
truths  in  which  we  go  on  perceiving  more  significance  the  more  our 
knowledge  increases." 

Waitz  returns  to  this  idea  of  the  nation  as  a  moral  organism,  in 
his  Grundzuge  der  Politik  :  "  The  origin  of  an  individual  state 
and  the  origin  of  states  generally,  are  two  distinct  things  ;  one  in 
no  manner  explains  the  other.  The  beginning  of  a  new  constitu- 
tion does  not  even  make  a  new  state.  The  state  grows  organically 
as  an  organism  ;  but  not  according  to  decrees  and  for  the  ends  of 
the  national  life  ;  it  reposes  upon  the  higher  moral  disposition  of 
man,  upon  his  ruling  moral  ideas.  It  is  not  a  natural,  it  is  an 
ethical  organism.  *****  The  idea  of  the  state  stands 
in  close  relation  with  that  of  the  nation.  The  nation  is  not  an 
accidental  fragment  of  humanity,  not  a  capricious  union  of  men, 
nor  every  collection  of  people  bound  together  in  a  state  ;  it  is  an 
organic  formation  within  the  human  family"  (p.  i).  Bluntschli  lays 
great  stress  upon  the  organic  character  of  the  nation.  I.  Lehre  vom 
Modernen  Stat.  I.,  p.  92.  Freeman  says  that  the  modern  conception 
of  the  state  is  a  nation.  Comparative  Politics,  1873,  p.  81.  See 
also  Burke's  Reflections  on  the  Revolution  in  France,  works,  V.,  p. 

79- 

At  a  certain  stage  in  the  development  of  a  nation,  before  it  has 
realized  the  idea  of  territorial  sovereignty,  laws  are  addressed  to 
the  members  of  a  tribe,  or  to  persons  possessing  such  common  dis- 
tinguishing marks  as  indicate  a  certain  tie  of  union,  irrespective  of 
the  place  in  which  they  may  happen  to  be.  On  this  point  see  Hoi- 


3O  POLITICS. 

land,  The  Elements  of  Jurisprudence y  Oxford,  1880,  p.  280  ;  also, 
Held,  System  des  Verfassungsrechts  der  monarchischen  Staaten 
DeutschlandS)  Wiirzburg,  1856,  p.  171  ;  Maine,  Ancient  Law,  p. 
99.  "  Territorial  Sovereignty — the  view  which  connects  sovereignty 
with  a  limited  portion  of  the  earth's  surface,  was  distinctly  an  off- 
shoot, though  a  tardy  one,  of  feudalism.  This  might  have  been 
expected,  a  priori,  for  it  was  feudalism  which  for  the  first  time 
linked  personal  duties,  and  by  consequence  personal  rights,  to  the 
ownership  of  land  "  (Maine,  Ancient  Law,  p.  102).  "  The  history 
of  political  ideas  begins,  in  fact,  with  the  assumption  that  kinship 
in  blood  is  the  sole  possible  ground  of  community  of  political 
functions.  Nor  is  there  any  of  those  subversions  of  feeling,  which 
we  term  emphatically  revolutions,  so  startling  and  so  complete  as 
the  change  which  is  accomplished  when  some  other  principle — 
such  as  that,  for  instance,  of  local  contiguity — establishes  itself  for 
the  first  time  as  the  basis  of  common  political  action  "  (p.  124).  This 
identification  of  the  nation  with  the  territory  which  it  occupies  has 
naturally  led  to  the  modern  idea  that  allegiance  grows  mainly  out 
of  the  fact  of  birth  within  the  limits  of  a  particular  country,  though 
to  this  principle  there  are  certain  exceptions.  In  a  recent  work  on 
international  law,  it  is  laid  down,  that  while  a  state  cannot  enforce 
its  laws  within  another  state,  yet  that  the  personal  relation  which 
exists  between  the  state  and  its  citizens  or  subjects,  travels  with 
the  latter  into  the  new  jurisdiction.  They  are  not  freed  from 
allegiance  by  absence  ;  whether  legitimate  or  illegitimate,  the  date 
at  which  they  attain  majority,  the  conditions  of  marriage  and 
divorce,  are  determined  by  the  state  so  far  as  their  effects  within 
its  own  dominions  are  concerned  ;  if  they  commit  crimes  they  can 
be  arraigned  before  the  tribunals  of  their  country  notwithstanding 
that  they  may  have  been  already  punished  elsewhere.  On  the 
other  hand,  there  may  be  instances  where  the  state  will  not  de- 
mand the  same  duties  from,  or  claim  the  same  rights  over,  foreign- 
ers within  its  territory,  as  over  its  own  citizens — but  this  is  always 
ex  gratia.  It  has  power  over  them,  but  it  does  not  choose  to  exer- 
cise it.  Out  of  the  rules  which,  by  consent,  govern  these  relations 
of  the  state  to  its  citizens  in  other  states,  and  its  relations  to  for- 
eigners in  its  own  dominions,  has  grown  private  international  law 
(Hall,  International Law ,  p.  43). 

The  doctrine  of  allegiance,  more  especially  with  reference  to  the 
United  States,  and  also  as  affecting  the  question  of  citizenship  of 


THE  NATION.  31 

the  State  and  of  the  United  States,  is  discussed  by  Salem  Butcher, 
in  an  article  on  The  Right  of  Expatriation  in  the  American  Law 
Review  for  April,  1877,  p.  447.  He  shows  that  the  distinction 
between  a  citizen  of  a  State  and  a  citizen  of  the  United  States  was 
recognized  in  the  Federal  Constitution  before  the  adoption  of  the 
fourteenth  amendment  (see  Art.  I.,  sec.  2  and  3  ;  Art.  I.,  sec.  I ; 
Art.  III.,  sec.  2  ;  Art.  IV.,  sec.  2,  and  Art.  XI).  The  fourteenth 
amendment  sets  the  question  at  rest,  in  providing  that  "All  per- 
sons born  or  naturalized  in  the  United  States,  and  subject  to  the 
jurisdiction  thereof,  are  citizens  of  the  United  States  and  of  the 
State  wherein  they  reside." 

The  duty  of  allegiance  to  the  United  States  having  become  fixed, 
either  by  birth  within  its  limits  or  by  naturalization,  cannot  be 
abolished  by  the  citizen  without  the  consent  of  the  United  States, 
declared  by  law  Qudge  Story  in  Spanks  vs.  Dupont,  Peters'  Rep., 
III.,  242  ;  Kent's  Commentaries,  II.,  12,  also  Lecture  XXV.). 
There  may  be  a  change  of  domicile  for  commercial  purposes,  but 
this  does  not  necessarily  include  the  right  of  expatriation.  Of 
course  when  treaty  stipulations  so  provide,  as  is  the  case  between 
the  United  States  and  Austria,  Sweden,  Baden,  Bavaria,  Hesse, 
Wurtemburg,  Prussia,  Belgium,  Denmark,  Mexico,  and  Great 
Britain,  the  citizen  may  expatriate  himself.  By  an  Act  of  the  Con- 
gress of  the  United  States,  July  27,  1868  (Statutes  at  Large  xv., 
224),  it  was  enacted  "  That  any  declaration,  instruction,  opinion, 
order,  or  decision  of  any  officer  of  this  government,  which  denies, 
restricts,  impairs,  or  questions  the  right  of  expatriation,  is  hereby 
declared  inconsistent  with  the  fundamental  principles  of  the  gov- 
ernment." The  executive  branch  of  the  government  considered 
this  act  as  merely  a  legislative  expression  of  the  opinion  that  the 
citizen  ought  to  be  allowed  to  expatriate  himself.  President  Grant 
in  his  message  of  Dec.  7,  1875,  treated  it  as  such,  and  asked  Con- 
gress to  enact  a  law  providing  how  expatriation  might  be  accom- 
plished. Our  laws  go  even  so  far  as  to  confer  citizenship  upon  all 
children  born  out  of  the  United  States,  whose  fathers  are  citizens 
(United  States  Revised  Statutes,  sec.  1993). 

The  allegiance  of  the  citizen  of  a  State  within  the  United  States 
is,  in  many  respects,  different  from  the  allegiance  due  by  the  citi- 
zen to  the  Federal  Union.  It  must  be  borne  in  mind  that  while 
every  citizen  of  a  State  is  ipso  facto  a  citizen  of  the  United  States, 
it  is  not  necessarily  the  case  that  every  citizen  pf  the  United  States 


32  POLITICS. 

is  also  a  citizen  of  a  State :  he  may  be  a  citizen  of  a  Territory  or 
of  the  District  of  Columbia.  Again,  a  citizen  of  a  State  may 
absolve  himself  from  his  allegiance  by  changing  his  residence 
to  another  State,  and  the  consent  of  the  State  of  his  former  resi- 
dence is  not  requisite. 


CHAPTER  III. 

THE    SOVEREIGN. 

FROM  the  conception  of  the  nation  as  a  social  organism, 
made  up  of  a  multitude  of  individuals  bound  together  in 
a  vast  network  of  intimate  relations,  sympathies,  and  in- 
terests, we  are  led  to  the  discussion  of  the  nation  as  a 
power,  as  a  society  clothed  with  sovereignty. 

The  nation,  viewed  as  a  political  society,  is  either  in- 
dependent or  dependent.  It  is  independent  when  the 
power,  and  the  organs  through  which  power  is  brought 
to  bear  upon  the  community,  are  contained  within  and 
proceed  from  the  nation  itself,  or,  as  it  may  be  otherwise 
expressed,  when  the  nation  governs  itself.  It  is  depend- 
ent when  its  governmental  action  is  subordinate,  in  any 
essential  particular,  to  the  governmental  authority  of  an- 
other political  society.  The  independent  political  society^ 
is  frequently  termed  a  sovereign  nation  or  state.  The 
term  "  sovereign, "  when  applied  to  the  nation  or  state, 
is  really  synonymous  with  the  term  independent ;  it  indi- 
cates that  in  the  family  of  nations  or  states,  the  particular 
one  about  which  the  expression  is  used  is  the  political 
equal  of  any  of  the  other  members  of  the  family. 

As  applied  to  a  state  within  a  federation,  as  one  of  the 
United  States,  or  a  kingdom  or  duchy  of  the  German 
Empire,  it  signifies  that  the  community  referred  to  is  the 
political  equal  in  the  federation  of  each  of  the  other  mem- 
bers. Not  that  it  may  have  in  all  respects  the  same  weight 
as  each  of  the  others  in  the  federal  councils,  but  that  its 
a* 


34  POLITICS. 

political  tie  with  the  others  is  alone  through  the  federal 
government,  and  but  for  that  tie  the  States  would  be  in- 
dependent of  one  another. 

The  term  "sovereign/'  implies  a  superior  and  sub- 
jects, and  hence  it  is  not  strictly  correct  to  speak  of  an  in- 
dependent political  society  as  a  sovereign  state,  because 
such  a  society  is  not  superior  to  any  other  state,  nor  sub- 
ject to  any  other  state.  As  Bentham  and  Austin  have  shown, 
there  is  no  such  thing  as  a  limited  sovereign,  because  the 
instant  the  sovereign  is  limited  in  his  power  he  ceases  to 
be  sovereign.  So  that  we  cannot  correctly  speak  of  a 
state  as  "sovereign"  which  is  subject  to  any  external 
controlling  power. 

There  has  grown  up  in  the  United  States,  in  the  dis- 
cussion of  the  many  and  important  constitutional  ques- 
tions which  arose  out  of  the  relations  of  the  several  States 
to  each  other  and  to  the  federal  government,  a  nomen- 
clature that  discriminates  between  the  supremacy  of  the 
United  States  and  the  positions  of  the  several  States 
with  relation  to  that  supremacy.  The  several  States 
are  spoken  of  as  "  sovereign"  States.  The  abstract  inter- 
pretation on  which  courts  and  statesmen  are  agreed  is, 
that  the  State  is  supreme  in  the  exercise  of  all  those 
powers  which  it  has  not  by  the  terms  of  the  federal  con- 
stitution surrendered  to  the  United  States,  while  the  latter 
is  supreme  as  to  all  powers  granted  by  that  instrument. 
The  practical  questions  which  have  agitated  courts,  legis- 
lative bodies,  and  parties  have  mainly  turned  upon  the 
definition  of  the  limits  of  the  powers  granted  and  the 
powers  reserved.  As  we  shall  see  later  (when  we  inquire, 
who  is  the  sovereign  in  this  great  political  body  which 
we  call  the  United  States?)  the  individual  State,  accurately 
speaking,  is  not  the  sovereign,  nor  has  it  sovereignty. 

This  division  of  sovereignty  between  the  United  States 


THE  SOVEREIGN.  35 

and  the  several  States  furnishes,  it  is  true,  a  rough  and 
ready  formula  from  which  discussion  can  start  when 
measures  are  proposed  or  cases  are  to  be  decided,  but  it 
cannot  be  denied,  on  the  other  hand,  that  it  has  intro- 
duced an  element  of  confusion  into  the  American  mind 
tending  to  cloud  the  perception  of  what  is  the  real  mean- 
ing of  the  terms  sovereign  and  sovereignty  in  political 
science. 

Proceeding  now  to  the  consideration  of  the  independ- 
ent political  society,  the  first  inquiry  should  be,  who  is 
the  sovereign  in  such  a  society  ?  Austin  thus  opens  his 
discussion  of  the  subject : 

"In  order  that  a  given  society  may  form  a  society  po- 
litical, habitual  obedience  must  be  rendered,  by  the  gen- 
erality or  bulk  of  its  members  to  a  determinate  and  common 
superior.  In  other  words,  habitual  obedience  must  be 
rendered  by  the  generality  or  bulk  of  its  members  to  one  and 
the  same  determinate  person  or  determinate  body  of  per- 
sons. "  * 

He  then  proceeds  to  enlarge  upon  this  fundamental 
proposition  in  its  various  aspects.  Sir  Henry  Maine,  in 
commenting  upon  Austin's  exposition  of  sovereignty,  has 
stated  the  ideas  of  the  latter  in  a  more  satisfactory  and  less 
cumbersome  way  than  Austin  himself,  in  this  wise  :  f 

:< There  is,  in  every  independent  political  community 
— that  is,  in  every  political  community  not  in  the  habit 
of  obedience  to  a  superior  above  itself — some  single  per- 
son or  some  combination  of  persons  which  has  the  power 
of  compelling  the  other  members  of  the  community  to  do 
exactly  as  it  pleases.  This  single  person  or  group — this 

*  "  The  Province  of  Jurisprudence  Determined,"  Lecture  VI., 
Lond.,  1879,  i,  p.  229. 

f  "  Lectures  on  the  Early  History  of  Institutions."  N.  Y.,  1875, 
p.  349,, 


36  POLITICS. 

individual  or  this  collegiate  sovereign  (to  employ  Austin's 
phrase) — may  be  found  in  every  independent  political 
community  as  certainly  as  the  centre  of  gravity  in  a  mass 
of  matter.  If  the  community  be  violently  or  voluntarily 
divided  into  a  number  of  separate  fragments,  then,  as 
soon  as  each  fragment  has  settled  down  (perhaps  after  an 
interval  of  anarchy)  into  a  state  of  equilibrium,  the  sov- 
ereign will  exist  and  with  proper  care  will  be  discoverable 
in  each  of  the  now  independent  portions.  The  sov- 
ereignty over  the  North  American  Colonies  of  Great 
Britain  had  its  seat  in  one  place  before  they  became  the 
United  States,  in  another  place  afterwards  ;  but  in  both 
cases  there  was  a  discoverable  sovereign  somewhere.  This 
sovereign,  this  person  or  combination  of  persons,  univer- 
sally occurring  in  all  independent  political  communities, 
has  in  all  such  communities  one  characteristic,  common 
to  all  the  shapes  sovereignty  may  take,  the  possession  of 
irresistible  force,  not  necessarily  exerted  but  capable  of 
being  exerted.  *  .  *  *  That  which  all  the  forms  of 
sovereignty  have  in  common  is  the  power  (the  power  but 
not  necessarily  the  will)  to  put  compulsion  without  limit 
on  subjects  or  fellow  subjects.  It  is  sometimes  extremely 
difficult  to  discover  the  sovereign  in  a  given  state,  and, 
when  he  or  it  is  discovered,  he  may  fall  under  no  recog- 
nized designation,  but,  where  there  is  an  independent 
political  society  not  in  a  condition  of  anarchy,  the  sover- 
eign is  certainly  there.  The  question  of  determining  his 
character  is,  you  will  understand,  always  a  question  of 
fact.  It  is  never  a  question  of  law  or  morals.  He  who, 
when  a  particular  person  or  group  is  asserted  to  consti- 
tute the  sovereign  in  a  given  community,  denies  the  prop- 
osition on  the  ground  that  such  sovereignty  is  an  usurpa- 
tion or  a  violation  of  constitutional  principle,  has  com- 
pletely missed  Austin's  point  of  view." 


THE   SOVEREIGN.  37 

It  will  be  observed  that  the  following  marks  are  asso- 
ciated with  the  idea  of  the  sovereign  : 

1.  A  habit  of  obedience.     The  obedience  must  be  suffi- 
ciently  continuous    to    establish  what  may  be  properly 
deemed  a  habit.     The  obedience  of  the  inhabitants  of  a 
country  overrun  by  an  army  to  the  Commander  in  Chief 
does  not  create  the  relation  of  sovereign  and  subject,  even 
though  the  occupation  is  of  the  capital  of  the  country 
and  it  continues  for  a  long  period.     The  aim  of  the  in- 
vading army  is  the  destruction  and  subjection  of  its  enemy. 
To  accomplish  these  ends  it  may  be  necessary  to  over- 
run and  occupy  the  enemy's  territory  and  impose  military 
law  upon  the    inhabitants;   and  for  this  purpose  to  use 
whatever  force  may  be  necessary.     Its  aim  is  destruction, 
and  is  inconsistent  with  that   condition  of  equilibrium 
upon  which  normal  political  government  depends.   When 
our  forces  invaded.  Mexico,  finally  dispersed  its  armies, 
captured  the  capital  and  remained  in  virtual  occupation 
of    the  country    for   many  months,    the   sovereignty   of 
Mexico  was  not  destroyed.     Under  similar  conditions  in 
France  in  1870-71,  there  was  not  a  transference  of  sover- 
eignty to  the  Germans. 

2.  The  obedience  must  be  habitually  given  by  the  bulk 
of  the  members  of  the  political  society.     Later,  when  we 
come  to  discuss  the  force  embodied  in  a  politicahsociety, 
we  shall  see  that,  from  the  nature  of  men,  this  must  be 
the  case  ;  that  in  order    to  constitute  a  state  there  iriust 
be  a  preponderance   of  the  physical  force   of  the  com- 
munity on  the  side  of  the  sovereign,  or  what  is  the  same, 
at  his  command. 

3.  The  bulk  of  the  society  must  obey  a  common  supe-" 
rior.     The   requirement    is   that  the  major  part  of  ihe 
people  must  be  agreed  as  to  the  person,  or  the  body  of 
persons,  who  shall  be  supreme. 


38  POLITICS. 

4.  The  possession  of  irresistible  force  within  the  society. 
This  implies  only  that  within  the  given  society  the  sover- 
eign cannot  be  legally,  or  continuously  in  fact,  opposed 
by  any  countervailing  force,  when  executing  his  com- 
mands or  laws. 

It  will  thus  be  seen  that  the  idea  of  sovereignty  involves 
the  idea  of  freedom  from  all  human  control.  From  this 
it  follows  that  the  sovereign  possesses  absolute  power  over 
the  persons,  lives,  and  property  of  its  subjects  or  citizens. 
We  know  that,  as  a  matter  of  fact,  there  is  some  limitation 
placed  on  the  sovereign  by  custom,  law,  or  opinion  in  every 
state,  no  matter  how  despotic  its  ruler.  As,  however,  the 
conception  of  sovereignty  is  somewhat  of  an  abstraction, 
we  must  ideally,  at  least,  recognize  the  presence  of  this  irre- 
sistible power.  Whatever  moral  or  prudential  considera- 
tions may  operate  to  check  or  hedge  the  exercise  of 
power,  in  no  wise  affect  the  fact  of  its  possession.  In  this 
view,  then,  all  sovereign  political  bodies  are  alike,  in  the 
last  analysis,  complete  despotisms.  The  United  States 
and  Turkey  do  not  differ  in  this  regard. 

We  are  now  in  a  position  to  consider  what  is  meant  by 
the  will  of  the  nation.  Every  independent  political 
society  is  an  organic  body  and  has  a  will.  This  will 
finds  its  expression  in  the  organs  and  institutions  of 
the  government,  and  also  in  commands  or  laws.  The 
use  of  the  phrase  "commands  or  laws"  is  in  view  of 
Austin's  definition  of  law,  which  is  more  satisfactory  than 
that  of  Blackstone.  He  says  "  Laws  proper,  or  properly 
so  called,  are  commands."*  When  a  law  is  enacted  in 
a  political  society  it  is  the  command  of  the  sovereign  or 
of  the  organ  of  the  government  invested  by  him  with  the 
power  to  utter  it. 

When  we  ascertain  who,  in  any  given  sovereign  state, 

*  "  Province  of  Jurisprudence  Determined/'  Lecture  I,  p.  81. 


THE   SOVEREIGN.  39 

expresses  and  enforces  its  supreme  will,  then  we  have 
found  the  sovereign  in  that  state.  At  this  point,  it  is 
proper  to  consider  more  carefully  what  we  mean  by  the 
supreme  will  of  the  nation. 

The  fact  is,  the  great  nation  is  made  up  of  millions  of 
human  beings,  each  of  whom  has  individual  will  power. 
But  each  one  can  only  will  as  to  what  he  shall  do  himself, 
or  what  another  who  is  subject  to  his  command  shall  do. 
In  the  latter  case,  the  one  who  obeys  the  command  sur- 
renders his  own  will  to  the  extent  of  the  obedience  given. 
When  two  come  together  to  determine  what  shall  be 
done  in  a  given  case  and  both  proceed  to  exercise  their 
wills  on  the  given  subject,  the  resultant  is  really  one  will 
as  to  that  thing ;  and  so  with  three,  four,  and  any  number. 
Where  the  wills  are  alike,  the  combination  produces  one 
will  as  to  the  matter  in  hand.  Hence,  if  all  the  voters  in 
a  republic  exercise  a  like  will  with  reference  to  any 
matter  affecting  the  state,  their  combined  wills  are  fused 
into  one  will,  which  is  the  will  of  that  state.  If  we  could 
suppose  the  case,  that  all  these  voters  should  meet  to- 
gether, and  all  should  agree  upon  and  declare  a  law, 
then  we  should  have  an  unmistakable  expression  of  the 
will  of  that  republic.  While,  however,  there  might  be  a 
million  or  more  wills  engaged  in  the  conference,  yet  the 
resultant  is  one  will  and  one  expression  of  that  will  in  the 
law  which  is  declared  If,  on  the  other  hand,  all  the 
Voters  cannot  agree,  then  the  question  immediately  arises, 
iwhich  of  the  two  or  three  or  more  wills,  that  result  from 
an  accord  of  the  agreeing  wills  of  fractions  of  the  entire 
body,  shall  be  accepted  as  the  will  of  the  single  organism 
Or  the  nation,  for  the  nation  cannot  at  one  time  and  on  one 
subject  have  more  than  one  will.  In  the  supposed  case, 
the  majority  of  votes  would  probably  be  taken  as  indicat- 
ing the  will  of  the  nation.  The  reason  of  this  will  here- 


40  POLITICS. 

after  be  examined  when  discussing  the  physical  force  of 
the  nation. 

This  single  will  of  the  nation,  instead  of  being  the  re- 
sultant of  a  consensus  of  all,  or  of  a  majority  of  the  citi- 
zens, may  be  that  of  a  large  body,  but  less  than  the 
majority.  We  should  then  have  a  government  by  an 
aristocracy.  If  the  numbers  were  small  it  would  be  an 
oligarchy,  and  if  one  person  should  be  empowered  to 
form  and  declare  the  national  will,  there  would  be  the 
autocrat  or  despot.  In  every  case,  whether  that  of  the 
democracy  or  the  aristocracy,  the  oligarchy  or  the  despot- 
ism, the  decree  or  the  law  is  the  expression  of  the  single 
will  of  the  nation  ;  and  further,  the  organ,  or  the  govern- 
ment of  the  nation,  which,  for  the  time  being,  declares  this 
will,  exists  with  the  consent  of  the  people  governed.  In  a 
broad  sense,  every  sovereign  government  exists  because  of 
the  consent  of  the  governed,  for  if  all  the  people  so  deter- 
mine and  so  act,  they  can  overthrow  any  form  of  govern- 
ment and  establish  any  other.  If  they  acquiesce  in  the 
rule  of  a  despot  they  thereby  consent  to  his  government. 

In  every  form  of  government  which  we  examine  it  is 
always  a  question  of  fact  who  in  the  nation  declares  the 
will  of  the  nation.  When  we  have  found  this  person, 
or  these  persons  collectively,  then  we  have  discovered  the 
sovereign  in  that  nation  ;  assuming  always  that  he  or  they 
who  declare  the  national  will  have  also  the  power  to  en- 

I force  it.  It  can  therefore  be  asserted  that  in  the  modern/ 
state  whoever  makes  the  fundamental  laws  is  the  sovereign.! 
When  we  come  to  examine  this  question  more  closely"^? 
shall  find  that  in  the  representative  government  the  law- 
making  or  sovereign  power  is  what  may  be  called  a  shift- 
ing power  :  at  one  time  in  one  body,  at  another  in 
another  ;  and  that  it  is  further  complicated  by  a  distribu- 
tion of  will  power  in  many  departments ;  but,  however 


THE   SOVEREIGN.  4! 

intricate  the  disposition  of  it  may  be,  we  shall  always  be 
able  to  reach  an  ultimate  body  of  persons  who  in  the  last 
analysis  can  declare  the  will  of  the  nation,  which  must 
necessarily  be  sovereign  and  single.  * 

*  This  conception  of  sovereignty  may  be  illustrated  by  reference 
to  some  points  in  the  history  of  political  thought.  Jean  Bodin 
(born  1530,  died  1596),  in  De  la  Rfyublique,  was  the  first  to  empha- 
size the  modern  view  of  sovereignty.  His  work  was  published  in 
Paris  in  1576.  Ten  years  later  it  was  translated  by  himself  into 
Latin.  There  is  an  English  translation,  made  by  Richard  Knolles, 
and  published  in  London  in  1606  under  the  title  of  The  Six  Books 
of  a  Commonweale.  A  summary  of  Bodin's  doctrines  has  been 
given  by  Bluntschli  and  also  by  Hallam,  not  to  mention  others. 
He  defined  the  state — which  he  called  republic,  in  order  the  bet- 
ter to  indicate  what  is  common  to  all  states, — as  the  government,  by 
law,  of  many  families  and  their  common  property  under  the  sov- 
ereign power.  He  censures  the  interpretation  of  the  ancients,  that 
the  state  is  the  union  of  many  people  with  the  intention  to  live  hap- 
pily and  well,  because  it  does  not  mention  the  three  essential  marks 
— family,  common  property,  and  the  superior  power, — and  because 
it  lays  too  much  emphasis  on  happiness  and  welfare,  forgetting  that 
the  state  must  preserve  itself  in  misfortune  and  against  the  blows 
of  fate  and  the  enemy. 

Bodin  perceives  the  elements  of  the  state  not  in  individual 
men,  but  chiefly  in  the  family.  The  family  is  to  him  an  ordered 
community  under  the  lead  of  the  father,  and  therefore  the  type  of 
the  higher  community  of  the  state.  Of  greater  force,  however, 
was  his  reference  to  the  third  mark,  sovereignty,  in  which  he  espe- 
cially undertook  to  exhibit  the  quality  of  the  state.  He  sees  in 
sovereignty  the  unity  and  continuity  of  the  power  of  the  state, 
which  is  subject  to  no  one  but  God.  He  styles  only  him  sover- 
eign to  whom  the  continuous  superior  power  belongs.  The  Ro- 
man dictator,  notwithstanding  his  temporary  power  was  without 
limits,  is  consequently  not  recognized  by  him  as  sovereign  ;  neither 
is  the  regent  thus  recognized,  who  wields  the  superior  power  in 
the  place  of  the  king  while  the  king  is  unable  to  exercise  it.  The 
people,  or  the  aristocracy,  or  the  prince,  can  make  over  the  superior 
power  which  appertains  to  him  by  procuration,  but  the  agent  has 


42  POLITICS. 

no  claim  to  sovereignty,  because,  as  Bodin  observes,  the  true  sover- 
eign is  the  giver  of  authority,  and  the  agent  exercises  the  right  only 
so  long  as  the  procuration  is  not  withdrawn.  The  derivation  of 
power  is,  however,  not  inconsistent  with  the  conception  of  sover- 
eignty, for  elected  princes  may  be  sovereign,  but  their  dependence 
and  the  revoking  of  their  power  is  inconsistent  with  it. 

Another  characteristic  which  Bodin  ascribes  to  sovereignty,  and 
which  he  indicates  as  absolute  power •,  is  more  important.  Certainly 
not  absolute  in  the  sense  that  it  may  have  been  dissevered  from  the 
government  of  God,  and  consequently  from  the  divine  law  and  from 
the  law  ,of  nature,  but  rather  in  the  sense  that  it  is  not  abridged  by 
any  other  state  power,  nor  by  any  state  law.  The  sovereign 
power  cannot  be  subordinated  to  any  other  power ;  the  sovereign 
will  is  the  highest,  the  final,  deciding  state-will.  The  law  derives 
its  strength  from  it.  It  is,  therefore,  not  dependent  upon  the  law, 
but  the  law  is  dependent  upon  it.  As  it  creates  the  law,  so  it  can 
disregard  the  law  :  it  can  make  it  ineffective.  Even  if  the  sovereign 
swears  to  maintain  the  law,  he  is  not,  unless  there  is  something  be- 
yond, bound  by  it  in  law. 

Bodin  examined  more  carefully  than  any  one  before  him,  and  laid 
more  stress  than  most  of  those  after  him,  on  the  truth  previously 
propounded  by  Aristotle,  that  there  is  in  every  state  a  single 
superior  power,  in  which  the  state  finds  its  highest  expression,  and 
which,  consequently,  determines  the  fundamental  character  and 
form  of  the  state.  But  in  this  he  has,  as  was  the  case  with  very 
many  before  and  after  him,  disregarded  the  distinction  between  the 
whole  and  its  parts,  between  the  body  of  the  state  and  the  superior 
organ  in  the  state,  and  has  fallen  into  the  error  of  confounding  the 
two  and  been  thereby  confused.  He  has  so  completely  identified 
the  power  of  the  whole  state,  which,  as  the  foundation,  as  the  force 
at  the  base,  is  equal  to  the  entire  strength  of  the  people,  with  the 
power  of  the  highest  organs  of  the  state,  which  he  styles  sovereignty, 
that,  before  he  is  aware  of  it,  the  former  disappears  entirely  and  the 
latter  alone  remains.  Because  the  total  force  of  the  nation  is 
limited  only  by  its  own  nature,  he  thinks  the  highest  organs  of  the 
state  can  be  limited  only  in  like  manner.  He  does  not  see  that  the 
second  organized  power  is  limited  by  the  organism,  in  which  it  is 
itself  only  an  organ,  though  the  ruling,  and  thus  is  likewise  only  a 
part  of  the  whole.  He  takes  the  sovereign  power  out  of  its  con- 
nection with  the  remaining  state  arrangements,  and  places  it  as  a 


THE   SOVEREIGN.  43 

thing  by  itself,  as  if  it  were  an  independent  being  and  not  merely 
an  individual  quality  of  another  being,  the  state.  This  mistake 
forces  him  to  the  logical  absurdity  of  ascribing  to  the  part,  which 
can  exist  only  in  and  with  the  whole,  an  unlimited  power  over  the 
whole. 

The  chief  qualities  of  sovereignty,  as  indicated  by  Bodin,  are  : 
I.  The  right  to  prescribe  laws  to  the  citizens,  collectively  and  in- 
dividually, without  being  obliged  to  obtain  the  agreement  of  a 
higher  or  of  a  lower  power.  The  consent  of  a  senate  or  of  an 
assembly  of  the  people,  or  of  the  classes  in  the  state,  may  be  useful, 
in  a  monarchy,  but  it  is  not  necessary  if  the  monarchial  sovereignty 
is  to  remain  untouched.  2.  The  right  to  declare  war  and  to  con- 
clude peace.  3.  The  right  to  nominate  the  superior  magistrates. 
4.  Final  appellate  jurisdiction  :  if  a  vassal  is  injured,  that  no  ap- 
proach and  no  appeal  is  possible  from  him  to  a  lord  paramount, 
because  the  vassal  would  then  be  on  the  way  to  wrest  sovereignty 
from  the  lord,  and  even  to  become  sovereign.  5.  The  right  to 
pardon  and  restore  fines.  6.  The  right  to  stamp  coins.  Thus  far, 
in  substance,  the  criticism  of  Bluntschli. 

That  Hobbes  (born  1588,  died  1679,)  was  influenced  by  the 
views  of  Bodin  is  probable,  although  there  appears  no  positive  evi- 
dence of  the  fact.  He  visited  France  as  early  as  1610,  and  again 
in  1629,  and  was  several  years  on  the  Continent  at  different  times 
later,  and  mingled  freely  with  the  scholars  of  the  French  capital. 
The  Leviathan  was  published  in  1651.  In  this  work  he  postulates 
a  condition  of  war  between  individual  men  as  the  primitive  state, 
and  affirms  that  in  order  to  protect  themselves  from  one  another, 
and  to  obtain  peace  and  security,  political  society  was  created. 
"  The  only  way  to  erect  such  a  common  power,"  he  says,  "  as  may 
be  able  to  defend  them  from  the  invasion  of  foreigners,  and  the 
injuries  of  one  another,  and  thereby  to  secure  them  in  such 
sort  as  that  by  their  own  industry  and  by  the  fruits  of  the  earth 
they  may  nourish  themselves  and  live  contentedly,  is  to  confer  all 
their  power  and  strength  upon  one  man,  or  upon  one  assembly  of 
men,  that  may  reduce  all  their  wills,  by  plurality  of  voices,  unto 
one  will ;  which  is  as  much  as  to  say  to  appoint  one  man,  or  as- 
sembly of  men,  to  bear  their  person  "  ("  Leviathan/'  Lond.  1839, 
p.  157).  And  again  :  "  A  commonwealth  is  said  to  be  instituted 
when  a  multitude  of  men  do  agree  and  covenant,  every  one  with 
every  one,  that  to  whatsoever  man,  or  assembly  of  men,  shall  be 


44  POLITICS. 

given  by  the  major  part  the  right  to  present  the  person  of  them 
all,  that  is  to  say,  to  be  their  representative  ;  every  one,  as  well  he 
that  voted  for  it  as  he  that  voted  against  it,  shall  authorize  all  the 
actions  and  judgments  of  that  man,  or  assembly  of  men,  in  the 
same  manner  as  if  they  were  his  own,  to  the  end  to  live  peaceably 
amongst  themselves  and  be  protected  against  other  men  "  (p.  159). 
Here  the  idea  of  the  sovereign  is  clearly  presented,  and  it  is  de- 
clared that  "  there  can  happen  no  breach  of  covenant  on  the  part 
of  the  sovereign  "  (p.  161).  The  sovereignty  is,  moreover,  indivis- 
ible. "  Where  there  is  already  erected  a  sovereign  power,  there  can 
be  no  other  representative  of  the  same  people,  but  only  to  certain 
particular  ends,  by  the  sovereign  limited.  For  that  were  to  erect 
two  sovereigns  ;  and  every  man  to  have  his  person  represented  by 
two  actors,  that  by  opposing  one  another  must  needs  divide  that 
power  which,  if  men  live  in  peace,  is  indivisible  "  (p.  172).  The 
quality  of  the  sovereign's  power  is  not  affected  by  the  form  of  gov- 
ernment. "  The  difference  between  these  three  kinds  of  common- 
wealth consisteth  not  in  the  difference  of  power,  but  in  the  differ- 
ence of  convenience  or  aptitude  to  produce  the  peace  and  security  of 
the  people  ;  for  which  end  they  were  instituted  "  (p.  173).  "  Elect- 
ive kings  are  not  sovereigns,  but  ministers  of  the  sovereign  ;  nor 
limited  kings  sovereigns,  but  ministers  of  them  that  have  the  sov- 
ereign power"  (p.  178).  "  The  sovereignty,  therefore,  was  always 
in  that  assembly  which  had  the  right  to  limit  him"  (p.  179).  The 
power  to  determine  its  own  form  of  government  was,  moreover, 
recognized  as  a  mark  of  a  politically  independent  and  sovereign 
slate.  "  There  is  no  perfect  form  of  government  where  th_  dispos- 
ing of  the  succession  is  not  in  the  present  sovereign "  (p.  180). 
Hobbes  anticipated  the  later  doctrine  that  what  the  sovereign  per- 
mits it  thereby  wills.  "  For  whatsoever  custom  a  man  may  by  a 
word  control,  and  does  not,  it  is  a  natural  sign  that  he  would  have 
that  custom  stand"  (p.  183). 

More  than  a  century  later  Jeremy  Bentham,  in  A  Fragment  on 
Government  (published  in  1776),  propounds  the  view  which  his 
disciple,  John  Austin,  afterwards  elaborated.  He  defines  a  po- 
litical society  thus  :  "  When  a  number  of  persons  (whom  we  may 
style  subjects)  are  supposed  to  be  in  the  habit  of  paying  obedience 
to  a  person,  or  an  assemblage  of  persons,  of  a  known  and  certain 
description  (whom  we  may  call  governor  or  governors),  such  per- 
sons altogether  (subjects  and  governors)  are  said  to  be  in  a  state  of 


THE   SOVEREIGN.  45 

political  society  "  ("  Works  "  I.  263).  In  the  sixth  lecture  of  The 
Province  of  Jurisprudence  Determined,  Austin  has  elaborated  and 
supplemented  the  views  of  Bentham  on  sovereignty. 

Bluntschli  has  enumerated  in  Lehre  vom  modernen  Stat,  I.  563, 
the  following  attributes  of  sovereignty  : 

1.  Independence  of  the  political  power  of  all  superior  political  au- 
thority.    But  this  independence  is  to  be  understood  relatively,  not 
absolutely.       International   law,  which   unites  all  -states  in  an  ar- 
rangement of  common  rights,  is  no  more  in  opposition  to  the  sov- 
ereignty of  the  state  than   is   constitutional  law,  which  limits  the 
exercise   of    political    power    within    the   territory   of  the    state. 
Whence  it  is  possible   that   subordinate  states  may  be  regarded  as 
remaining  sovereign,  although  they  may  have  become  essentially 
idependent  on  the  collective  state,  as,  for  example,  in  foreign  politi- 
cal and  military  affairs. 

2.  Supreme  political  dignity,  what  the  ancient   Romans  styled 
Majestas. 

3.  Plenitude  of  political  power,  as  opposed  to  limited  authority. 
Sovereignty  is  not  a  sum  of  separate  individual  rights,  but  a  col- 
lective political  right,  a  central  conception  of  force  similar  to  that 
of  the  conception  of  property  in  private  law. 

4.  The  sovereign  power,  moreover,  is,  from  its  very  nature,  the 
supreme  power  in  the  state.      There  can  be,  therefore,  no  other 
political  power  in  the  organism  of  the  state  superior  to  it.      The 
French  seigneurs  of  the  middle  ages  ceased  to  be  sovereign  when 
they  were  obliged  again  to    subordinate  themselves  to  the  king, 
their  feudal  lord,  in   all    essential    respects  of  independence  and 
dominion.     The  German  electors  have  been  able  to  assert  their 
sovereignty  in  their  several  territories,  since  the  fourteenth  century, 
for  in  fact  they  have  possessed  in  their  own  right  the  supreme 
political  power  in  these  territories. 

5.  Since  the  state  is  an  organic  body,  the  unity  of  the  sovereign 
power  is  a  necessity  of  its  welfare.     The  division  of  the  sovereignty 
leads,  in  its  consequences,  to  the  paralysis  or  dissolution  of  the 
state,  and  is,   therefore,   not  compatible  with  the  health  of  the 
state. 

The  general  excellence  of  Holland's  Elements  of  Jurisprudence 
(Oxford.  1880)  entitles  the  definition  of  sovereignty  there  given  to 
our  consideration.  "Every  state,"  he  says,  "is  divisible  into 
two  parts,  one  of  which  is  sovereign,  the  other  subject."  "  The 


46  POLITICS. 

sovereignty  of  the  ruling  part  has  two  aspects.  It  is  '  external, '  as 
independent  of  all  control  from  without ;  '  internal,'  as  paramount 
over  all  action  within."  "  External  sovereignty,  by  possession  of 
which  a  state  is  qualified  for  membership  of  the  family  of  nations, 
is  enjoyed  in  the  fullest  degree  only  by  what  is  technically  known 
as  a  '  Simple  State,'  i.  <?,,  by  one  which  is  'not  bound  in  a  perma- 
nent manner  to  any  foreign  body.'  States  which  are  not  '  simple ' 
are  members  of  a  '  System  of  States,'  and  collectively  subject  to  a 
'  federal  government '  "  (pp.  38,  39). 

In  his  Introduction  to  the  Constitutional  Law  of  the  United 
States,  p.  28,  Professor  J.  N.  Pomeroy  calls  attention  to  the  ne- 
cessity of  constantly  preserving  the  distinction  between  "  the  nation 
and  the  government  which  that  nation  has  actively  created  or  pas- 
sively permitted  as  the  agent  for  the  expression  of  its  supreme  will." 
He  very  properly  charges  a  large  part  of  the  confusion  of  ideas,  in 
this  country,  concerning  the  true  import  of  the  term  "  sovereignty" 
and  "  sovereign"  to  the  long, and  in  a  modified  way  still  continued, 
discussion  of  "  State  rights  "  and  "  State  sovereignty."  It  is  more 
difficult  to  accept  his  criticism  of  Austin's  famous  sixth  lecture, 
when  he  claims  that  in  it  nations  and  states  are  confounded  with 
the  ruling  apparatus  or  organs  of  government  within  them.  In 
reading  this  lecture  it  must  always  be  borne  in  mind  that  Austin's 
primary  object  was  to  fix  distinctly  in  the  minds  of  his  hearers  the 
idea  that  a  law,  in  the  judicial  sense,  or,  as  he  styles  it,  "  a  posi- 
tive law,"  is  a  command  "  set  by  a  sovereign,  or  a  sovereign  body 
of  persons,  to  a  member  or  members  of  the  independent  political 
society  wherein  that  person  or  body  is  sovereign  or  supreme."  His 
leading  thought  was  to  define  positive  law,  and,  consequently,  he 
concerned  himself  mainly  with  making  clear  the  conception  of  the 
sovereignty  or  characteristic  marks  of  the  independent  political 
society,  and,  what  was  of  more  importance,  with  the  definition  and 
marks  of  the  sovereign  within  the  independent  political  body.  In 
other  words,  he  traces  distinctly  the  two  objects  noted  in  the  above 
quotation — the  "  sovereign "  and  the  "  independent  political 
society." 


CHAPTER    IV. 

THE   ORGANS    OF   THE    SOVEREIGN. 

THE  nation  must  have  organs  to  express  its  will  in 
commands  or  laws,  and  to  enforce  the  execution  of  its 
laws.  These  organs  constitute  the  government,  whose 
function  it  is  to  regulate  the  relations  of  the  nation  with 
other  nations,  and  to  regulate  the  actions  and  relations  of 
individual  citizens  with  reference  to  one  another. 

Having  considered  the  nation  as  an  organic  social  be- 
ing, clothed  with  absolute  power  vested  in  that  part  of 
the  nation  which  we  call  the  sovereign,  and  endowed  with 
a  will,  we  turn  now  to  inquire  into  the  nature  and 
general  functions  of  those  means  through  which  the  will 
of  the  nation  is  expressed  and  rendered  effective. 

The  nation  thus  characterized,  considered  at  any 
given  time,  appears  composed  of  men,  women  and  chil- 
dren inhabiting  a  certain  territory.  Let  us  take  the 
United  States  as  an  example.  Our  last  census  report 
shows  that  within  our  territorial  limits  there  were,  in 
1880,  over  fifty  millions  of  persons.  If  we  picture  to 
ourselves  this  great  multitude,  we  shall  see  at  various 
points  hundreds  of  thousands  crowded  into  cities ;  then 
smaller  cities  and  towns  and  villages,  with  the  interspaces 
occupied  by  families  living  on  farms  in  varying  degrees  of 
proximity.  If  we  could  embrace  all  these  persons  in  a 
single  glance,  we  should  see  all,  or  very  nearly  all,  of  the 
adults  engaged  in  different  avocations,  and  it  would  be 
particularly  noted  that  each  is,  in  a  degree,  only  a  speci- 


48  POLITICS, 

ulist ;  that  of  all  the  things  which  contributed  to  the  satis- 
faction of  his  own  desires,  each  produced,  ordinarily,  but 
very  little,  and  even  in  the  country  is  largely  engaged  in 
furnishing  what  others  consume.  It  would  be  further 
noted  that  these  multitudes  of  individuals  are  constantly 
in  contact  and  communication.  Now,  if  we  select  one 
of  these  individuals  from  the  fifty  millions,  we  find  that 
his  nobler  and  better  part  is  the  resultant  of  the  past  efforts 
and  contributions  to  the  social  stock  of  his  predecessors, 
and  also  of  the  efforts  of  all  his  contemporary  fellow-coun- 
trymen. The  point  is,  that  in  this  particular  distinctive 
social  division,  comprehended  within  the  United  States, 
every  individual  is  fitted  in,  and  is  so  much  a  part  of  the 
general  social  organism,  that,  severed  from  it,  or  reduced 
to  what  is  sometimes  erroneously  called  a  state  of  nature, 
he  could  not  live.  Such  a  distinct  community,  constitut- 
ing a  great  unit  of  social  existence,  must  have  a  govern- 
ment of  some  kind,  otherwise  it  appears  as  a  being  with 
a  will,  but  without  organs  through  which  this  will  may 
find  expression. 

It  is  true  that,  for  the  purposes  of  abstract  considera- 
tion, we  can  separate  the  nation  from  its  government, 
because  a  nation  will  exist  though  its  government  may  be 
changed,  or  even  if  it  be  for  a  time  actually  dissolved  ; 
still  we  cannot  conceive  of  a  nation  continuing  any  length 
of  time  without  a  government. 

In  a  work  which  is  used  as  a  text-book  in  our  schools, 
and  which,  besides,  has  a  wide  circulation,*  it  is  laid 
down  as  a  fundamental  proposition,  that  ' '  governments 
may  be  said  to  be  necessary  evils,  their  necessity  arising 
out  of  the  selfishness  and  stupidity  of  mankind."  There 
could  not  be  a  greater  error.  Political  government  grows 
out  of  the  nature  of  man,  it  is  true,  but  it  is  as  much  a 
*  Politics  for  Young  Americans,  by  Charles  Nordhoff. 


THE  ORGANS  OF  THE  SOVEREIGN.     49 

necessity  of  his  being  and  growth  as  the  vital  forces  of 
life  themselves.  Many  centuries  ago  Aristotle  profoundly 
remarked  that  "man  is  by  nature  a  political  being."  It 
is  an  absolutely  perverted  conception  that  political  gov- 
ernment is  a  device  which  good  men  have  invented  to 
keep  bad  men  in  subjection.*  On  the  contrary,  it  is  a 
sign  of  the  godlike  attributes  of  humanity ;  of  the 
supremacy  of  will  and  reason  over  mere  instinct  and 
animal  desire.  The  assertion  of  such  a  view  as  that  re- 
ferred to  is  at  this  day  a  revival  of  the  exploded  fiction  of 
an  original  state  of  nature  antecedent  to  government. 
Political  government  is  the  expression  of  order  in  a  com- 
munity. It  is  the  mark  of  collective  reason.  It  is  no 
more  than  the  instrumentality  by  or  through  which  the 
collective  body  makes  and  executes  the  commands  which 
it  imposes  upon  itself.  In  the  earlier  stages  of  growth, 
social  groups  have  customs  instead  of  written  law ;  but 
both  in  their  essentials  are  the  same.  Custom  is  a  rule 
of  action  which  has  taken  shape  by  degrees,  and  is  finally 
universal^  acquiesced  in.  When  thus  accepted  it  be- 
comes the  law,  and  is  enforced  by  the  community.  The 
written  law  is  different  only  in  that  it  was  formulated  at 
one  time,  and  is  more  clearly  defined. 

The  history  of  all  primitive  peoples  shows  that  custom- 
ary law  is  the  first  stage  of  progress  from  a  condition  of 
no  law.  At  first,  private  wrongs  can  only  be  redressed  by 
private  vengeance  ;  if  a  man  is  murdered,  his  relatives 
must  pursue  and  punish  the  murderer.  It  is  not  long, 
however,  before  it  happens  that  a  man  is  murdered  who 

*"  It  is  as  a  member  of  a  state  that  man  exists,  that  he  is  in- 
tended to  exist,  and  unless  as  a  member  of  a  state,  he  is  incapable 
of  existing  as  a  man.  He  can  as  little  create  a  language  as  create 
a  state  ;  he  is  born  to  both,  for  both,  and  without  both  he  cannot 
exist  at  all."  Kemble,  "  The  Saxons  in  England,"  i.,  126. 
3 


50  POLITICS. 

has  no  relatives.  Who  shall  avenge  his  death,  for  the 
general  sentiment  demands  vengeance  ?  It  is  undertaken 
by  the  ruler  or  chief  who  represents  the  whole  body.  This 
is  actually  what  grew  to  be  the  rule  in  the  early  European 
world.  Thus,  then,  the  rude  conception  of  a  corporate 
injury,  instead  of  a  mere  personal  injury  suffered,  dawns 
upon  the  mind.  So,  also,  originally,  contract  differences 
were  settled  by  private  contention,  but  were  gradually 
taken  in  charge  by  the  state. 

The  development  of  the  state  idea  rests  upon  the  grow- 
ing apprehension  of  the  great  truth  that  the  nation  is  not 
an  accidental  collection  of  human  beings,  who  are  so 
stupid  and  selfish  that  some  superior  power  must  step  in 
and  regulate  them  by  laws,  but  that,  on  the  contrary,  it  is 
a  great  corporate,  organic  being,  whose  individual  mem- 
bers are  intimately  bound  together,  and  must  have  gov- 
ernment and  rules  of  action,  for  it  is  impossible  for  a 
human  being,  single  or  corporate,  to  live  without  them. 
Every  action  in  the  nation,  in  a  greater  or  less  degree, 
affects  all  its  members.  There  is  a  common  interest 
which  imposes,  in  return,  a  common  duty  to  all. 

Every  form  of  government,  no  matter  whether  despotic 
or  democratic,  for  the  time  being  expresses  the  will  of  the 
state  in  which  it  exists.  There  is  a  vague  way,  quite  com- 
mon, of  looking  at  a  government  as  something  apart  and 
distinct  from  the  citizens  of  the  state.  This  view  is  more 
largely  diffused  in  monarchical  than  in  democratic  states. 
But,  of  course,  it  is  entirely  erroneous.  The  forms  of  the 
government  are  merely  the  instrumentalities  through 
which  the  whole  given  community  expresses  its  will,  and 
uses  its  force  ;  and  this  is  just  as  certainly  the  case  if  one 
man  is  the  autocrat  as  if  every  man  is  a  voter.  In  the 
former  case  all  permit  this  one  autocrat  to  express  the  will 
and  use  the  force  of  the  state. 


THE  ORGANS  OF  THE  SOVEREIGN.     51 

The  general  functions  of  a  nation's  government  are,  to 
determine  the  relations  of  the  nation  to  other  nations  of 
the  world-family,  and  to  regulate  the  actions  and  relations 
of  the  individuals  within  the  nation  with  reference  to  one 
another. 

The  nation  in  its  relation  to  other  nations  is  a  single 
person.  If  sovereign,  that  is  without  any  political  superior, 
the  government,  or  rather,  as  is  usually  the  case,  some 
particular  person  in,  or  department  of,  the  government, 
negotiates  and  makes  treaties  with  other  powers,  and  rep- 
resents the  nation  in  other  international  relations.  Out 
of  this  conception  of  the  oneness  of  the  nation,  has  in  large 
part  grown  the  whole  circle  of  international  rights  and 
duties. 

The  second  function  of  government,  that  of  regulating 
the  actions  and  relations  of  the  individuals  within  the 
nation,  with  reference  to  one  another,  brings  us  immediately 
within  the  field  of  the  present  inquiry.  But  at  the  outset, 
when  we  speak  of  the  individuals  as  fitted  into  a  complex 
social  organism,  it  is  always  with  the  limitation,  that  as  a 
political  body,  this  society  is  limited  by  the  boundaries  of 
the  territory  it  occupies.  Every  political  organism  im- 
plies a  distinct  territory  as  well  as  a  distinct  body  of  people. 

It  follows,  therefore,  that  a  person  may  be  temporarily 
or  permanently  severed  from  such  an  organism  of  which 
he  has  formed  a  constituent,  by  going  out  of  the  territory 
of  his  state.  A  citizen  of  the  United  States  by  crossing 
the  line  into  Canada,  though  only  to  remain  a  day,  enters 
into  a  new  set  of  political  relations,  though  he  does  not 
entirely  depart  from  those  of  his  own  country.  And  so, 
in  a  less  degree,  a  citizen  of  one  State  in  the  Union  who 
goes  into  another,  likewise  changes  his  political  relations. 
Within  the  territorial  limits  of  the  given  political  organ- 
ism, it  is  manifest  that  the  manifold  relations  growing  out 


52  POLITICS. 

of  the  daily  contact  of  numerous  persons,  and  in  a  com- 
plex society,  of  interests  extending  far  beyond  the  person 
.who  acts,  cannot  be  left  to  the  chance  will,  whim,  or  ca- 
price of  each  individual,  or  of  every  voluntary  combina- 
tion of  individuals,  but  must  be  regulated  by  uniform 
rules  of  action,  applicable  to  all  relations  of  a  like  kind. 
In  truth,  from  the  nature  of  things,  fixed  rules  of  conduct 
must  grow  up.  In  primitive,  rude  communities,  customs 
grow  and  furnish  these  rules  of  conduct,  but  as  society 
develops,  written  laws  gradually  take  their  place. 

Hence,  every  distinct  political  community  must  have  a 
will,  that  is,  it  must  be  capable  of  wi/ling.  If  its  mem- 
bers exclusively  guide  their  conduct  by  customs,  then  the 
society  wills  that  this  be  done  ;  but  if,  as  is  the  case  with 
the  developed,  civilized  state,  the  rules  of  conduct  are  to 
be  promulgated  through  written  laws,  then  each/ law  is  the 
expression  of  the  will  of  the  state  Jon  the  given  subject.* 
Austin  expresses  it  :  "  Laws  properly  so-called  are  com- 
mands." The  nation  has  a  will,  and  this  will  expresses 
itself  in  commands.  Moreover,  it  must  make  its  will 

*  It  is  not  to  be  understood,  however,  that  a  nation  in  its  legis- 
lation ever  becomes  entirely  free  from  the  directing  force  of  custom 
and  usage.  Stahl  (Die  Philosophic  des  Rechts,  II.  141)  says  : 
"  Every  nation,  indeed,  in  its  later  periods,  is  required  to  legislate, 
but  it  is  an  erroneous  view,  that  legislation  in  later  times  has  to 
accomplish  just  what  was  accomplished  earlier  by  custom  and 
usage.  Custom  arises  at  the  same  time  with  the  relations  which  it 
affects,  and  gives  them  a  name  and  constitutes  them  legal  relations. 
But  everywhere  in  the  field  of  legislation  are  found  norms,  in  ac- 
cordance with  which  men  direct  their  acts.  Whenever  a  case  is 
presented  to  the  scrutiny  of  the  legislator,  it  has  already  been,  for 
a  long  time,  subject  to  that  invisible,  creative  power  of  law,  and 
brought  into  a  definite  form.  In  the  latest  and  most  enlightened 
periods,  just  as  in  the  earliest,  all  relations  receive  their  primary 
legal  form  from  custom ;  they  can  be  altered  and  directed  only  by 
legislation." 


THE  ORGANS  OF  THE  SOVEREIGN.      53 

effective  ;  therefore  it  must  be  able  to  command  the  physi- 
cal force  of  the  nation,  so  that  the  nation,  in  order  to  ac- 
complish these  ends  of  its  being,  must  have  instrumen- 
talities or  agents  through  which  to  express  its  will,  and 
employ  its  force.  These  constitute  its  government. 

Every  government  consists  of  a  certain  framework  of 
what  are  sometimes  styled  institutions,  but  more  generally, 
in  modem  phrase,  offices,  together  with  the  persons  who 
at  any  given  time  perform  the  functions  assigned  to  these 
offices.  In  theory  we  may  separate  the  offices  from  the 
officers,  but  actually,  in  examining  the  government  of  a 
country,  the  two  must  be  considered  together.  We  may 
discuss  the  office  of  President  of  the  United  States,  or  of 
France,  as  something  distinct  from  any  one  filling  it,  but 
in  the  actual  conduct  of  affairs  there  must  be  always  a 
living  agent  to  perform  the  duties  of  the  office.  It  is 
proper  to  speak  of  the  government  of  the  whole  nation, 
or  of  the  government  of  a  particular  portion  of  its  terri- 
tory. For  instance,  the  expression  "the  government  of 
the  United  States  "  means  all  of  the  offices  and  all  of  the 
incumbents  of  these  offices  pertaining  to  the  federal  branch 
of  our  governmental  system.  Or,  if  we  speak  of  the  gov- 
ernment of  the  city  of  New  York,  we  mean  the  offices 
and  their  incumbents  provided  for  that  particular  polit- 
ical territory.  The  government  is  not  the  mass  of  the 
people,  nor,  in  our  system,  is  it  the  constitution  or 
the  separate  States,  but  it  is,  as  stated,  the  offices  and 
those  filling  them.  It  is  true  that  the  term  government 
is  frequently  used  in  a  more  limited  sense  in  current  po- 
litical literature,  as,  for  instance,  when  it  is  said  such  or 
such  a  scheme  is  a  "government  measure,"  or,  "the 
government  is  in  favor  of  such  and  such  a  policy."  Here 
is  meant  the  small  number  of  officials  who  have  a  con- 
trolling voice  in  the  direction  of  governmental  affairs  ; 


54  POLITICS. 

but  when  treating  of  the  science  of  politics,  we  must  con- 
fine our  definition  to  the  organs — meaning  thereby  the 
offices  and  officers — by  means  of  which  the  nation  or  its 
subdivisions  express  the  organic  will  or  wield  the  force  of 
the  whole  or  the  part,  as  the-  case  may  be.  It  is  not 
necessary  to  particularize  the  very  many  ways  in  which  at 
different  times  and  among  different  peoples  the  will  of 
the  nation  has  been  expressed  and  enforced  through  Em- 
perors, Kings,  Consuls,  or  Dictators,  or  through  councils, 
or  parliaments,  or  congresses,  or  to  enumerate  the  host  of 
inferior  officials  who  have  been  subordinate  to  them.  It 
is  sufficient  now  to  call  attention  to  the  underlying  prin- 
ciples, which  will  be  described  more  fully  later  in  treating 
of  the  differentiation  of  functions,  that  whatever  the  sys- 
tem of  government,  it  is  made  up  of  a  body  of  persons 
who  are  each  doing  one  of  two  things,  either  expressing 
the  will  of  the  particular  community,  or  wielding  its  force 
in  order  to  execute  this  will.  Sometimes,  it  is  true,  the 
same  person  is  performing  both  functions,  but  then  he 
combines  two  distinct  attributes  of  the  political  body. 


CHAPTER  V. 

THE   FORCE   OF   THE    NATION. 

THE  government  of  every  nation  rests  on  the  total 
physical  force  of  the  nation.  The  function  of  a  govern- 
ment^ as  already  suggested,  is  both  to  express  and  to 
execute  the  will  of  the  state.  If  the  government  cannot 
enforce  the  execution  of  its  laws  within  the  nation,  then 
the  nation  ceases  to  be  sovereign.  And  if  a  majority  or 
plurality  of  voters,  as  the  case  may  be,  determines  for  the 
time  being  the  will  of  any  given  state,  it  is  primarily  be- 
cause such  majority  or  plurality  represents  the  prepon- 
derance of  physical  force. 

When  the  will  of  the  nation  has  been  announced  in  the 
law,  through  the  organs  of  the  government  empowered  to 
make  the  declaration,  the  next  question  is,  who  shall  en- 
force it  ?  It  will  be  seen  at  once  that  he  who  executes  the 
law  is  subordinate  to  those  who  formulate  and  announce 
the  law,  because  he  does  what  a  superior  commands 
him  to  do ;  consequently  he  is  not  the  sovereign.  In 
order  to  make  the  will  or  command  of  the  nation  effect- 
ive, it  must  either  be  acquiesced  in  or  enforced.  In  fact, 
in  all  nations  there  must  exist  the  ability  to  carry  out  the 
law  by  the  exercise  of  physical  force,  and  if  need  be,  of 
the  entire  physical  force  of  the  nation.  It  may  be  said 
that  physical  force  is  at  the  basis  of  every  political  com- 
munity, whether  independent  or  dependent.  This  force 
is  either  active  or  dormant  ;  generally  the  latter,  lying  as 
it  were  in  the  background,  but  ready  to  be  aroused  if 
any  exigency  demands.  The  whole  political  structure  of 


56  POLITICS. 

every  community  rests,  in  a  large  sense,  on  physical  force. 
If  the  body  politic  cannot  bring  the  combined  force  of  its 
members  to  bear  upon  any  one  of  them  in  order  to  com- 
pel obedience  to  the  commands  of  the  sovereign  of  that 
body,  then  it  cannot  be  said  to  be  an  independent  political 
community,  for  it  lacks  one  of  its  characteristic  elements. 
Not  only  is  an  independent  political  community  the  em- 
bodiment of  physical  force,  but,  as  regards  its  members  or 
citizens,  is,  as  has  been  suggested,  an  absolute  despotism. 
If  the  sovereign  in  the  nation  makes  a  command,  and 
any  of  the  members  of  the  state  refuse  to  obey  it,  and  the 
remaining  members  refuse  to  furnish  the  physical  force  to 
compel  obedience,  then  the  person  or  body  of  persons 
making  such  command  ceases  to  be  sovereign. 

This  has  sometimes  been  styled  the  mere  police  theory 
of  government,  but  in  asserting  that  physical  force  is  the 
basis  on  which  all  government  rests,  it  must  be  under- 
stood in  the  sense  that  when  any  independent  political 
community  maintains  a  form  of  government — that  is,  pro- 
vides an  agency  through  which  the  sovereign  in  that 
community  may  express  its  commands — it  necessarily,  in 
order  to  make  these  commands  effective,  more  than  mere 
idle  fulminations,  places  at  the  disposal  of  the  sovereign 
whatever  of  physical  force  the  community  possesses  for 
the  purpose  of  compelling  obedience  to  the  commands. 
If  such  were  not  the  case,  the  functions  of  every  govern- 
ment would  cease.  It  is  not,  of  course,  affirmed  that 
every  act  is  the  exercise  of  propelling  force.  On  the 
contrary,  by  far  the  larger  part  of  government  action  is 
merely  regulative.  The  reserve  force  may  be  compared 
to  the  banker's  fund  which  is  only  to  be  drawn  upon  in 
cases  of  emergency  ;  without  this  fund,  however,  he 
would  be  insolvent  ;  and  so  a  government  unable  to 
command  its  reserve  is  a  mere  form  without  vitality. 


THE   FORCE   OF  THE   NATION.  57 

Laws  are  made  by  the  legislature  with  penalties  in 
case  of  disobedience.  It  is  true  that  these  are,  in  most 
instances,  obeyed,  not  through  fear  of  the  penalties,  but 
really  because  the  law-making  power  has  enacted  them. 
It  is  certainly  true  that  most  people  do  not  refrain  from 
stealing  because  there  are  laws  with  penalties  for  the 
offence.  The  mass  of  people  in  civilized  communities 
have  the  law-obeying  habit.  Still,  it  may  be  that,  out  of 
ten  thousand,  only  one  will  violate  a  statute  ;  but  unless 
all  the  physical  force  of  the  state  can  be  brought  to  bear, 
if  necessary,  to  enforce  the  sanctions  of  the  violated  law 
on  this  one,  the  state  has  not,  in  fact,  a  government. 

It  is  certainly  not  to  be  overlooked  that  very  much  of 
the  mechanism  of  every  government  is  provided  for  by 
laws  without  penalties,  or,  apparently,  very  inadequate 
ones.  The  postal  system,  for  instance,  consists  of  elabo- 
rate arrangements  for  the  reception  and  distribution  of 
letters.  It  is  designed  and  administered  entirely  as  a 
convenience  to  the  citizen.  No  one  is  compelled  to 
avail  himself  of  its  instrumentalities.  If  one  does  not 
comply  with  its  rules,  as  in  not  prepaying  the  postage  on 
a  letter,  he  merely  loses  the  advantages  of  its  expeditious 
service.  Yet  at  proper  points  this  service  is  guarded  by 
adequate  penalties.  Severe  punishment  is  inflicted  upon 
robbers  of  the  mail,  or  for  the  opening  of  letters  by  un- 
authorized persons,  or  for  carrying  letters  not  stamped,  on 
mail  routes.  The  whole  service  moves,  as  it  were,  from 
its  own  volition  ;  but,  in  fact,  is  held  up,  one  may  say, 
by  the  passive  force  of  the  community. 

So  with  the  complex  body  of  rules  regulating  proced- 
ure in  courts  of  justice.  A  person  whose  legal  rights 
have  been  invaded  may  quietly  submit  to  the  wrong,  or 
he  may  seek  redress  by  a  civil  remedy  in  the  courts.  His 
action  or  non-action  is  entirely  voluntary.  If  he  chooses 
3* 


$8  POLITICS. 

to  ask  reparation  he  does  so  in  a  certain  formal  way,  and 
the  whole  procedure  to  the  decree  is  by  methods  estab- 
lished by  statutes,  or  by  rules  adopted  by  the  practice  of 
courts.  /  Up  to  the  last  moment  he  may  abandon  the 
pursuit  of  his  remedy.  It  is  only  when  the  decree  is  ex- 
ecuted by  the  sheriff  or  other  officers  of  the  court  that 
there  is  any  appearance  of  physical  force. 

The  rules  and  regulations  which  control  the  interior 
workings  of  the  several  great  departments  of  state  are  in 
large  part  provided  for  by  voluminous  statutes  without 
penalties.  The  sovereign  authority  simply  says,  in  sub- 
stance, there  shall  be  a  Department  of  State,  a  Treasury 
Department,  a  War  Department,  and  an  Interior  Depart- 
ment, and  they  shall  be  conducted  by  such  and  such 
officers,  and  in  such  and  such  a  manner.  Apparently 
these  several  functions  of  government  do  not  require  a 
basis  of  physical  force,  but  if  we  follow  out  to  the  last  de- 
gree their  manifest  relations  to  the  nation,  we  shall  see 
that  none  of  them  could  be  an  active  agent  without  the 
ba?js  of  that  force.  They  live  and  act  because  they  are 
held  up  and  sustained  by  a  latent  force  which  at  any 
moment  may  manifest  itself. 

But  why  is  it,  that  in  a  republic  the  majority,  or  some- 
times merely  a  plurality  of  voters,  is  permitted  to  form 
and  express  the  will  of  the  community  ?  Because  the 
majority,  as  between  two  parties,  and  a  plurality,  as  between 
three  or  more,  represents  the  preponderance  of  physical 
force,  which  by  supposition,  may  be  used  to  make  the 
majority  or  plurality  will  effective.  A  thousand  men  may 
cast  their  votes  in  favor  of  a  certain  measure,  but  fifteen 
hundred  may  vote  against  it.  Now,  each  side  deeming 
itself  in  the  right,  there  is  no  inherent  reason  why  the 
minority  should  acquiesce,  there  is  no  immutable  stand- 
ard of  policy  by  which  to  gauge  the  measure  in  question. 


THE  FORCE  OF  THE  NATION.  59 

Why,  then,  should  the  less  number  of  voters  submit  to  the 
greater  ?  It  is,  at  bottom,  because  the  majority  in  num- 
bers possess  the  preponderance  of  force.  Long  experience 
teaches  self-governing  peoples  that,  instead  of  fighting 
every  political  controversy  out  to  the  bitter  end  at  the 
point  of  the  sword,  it  is  wiser,  it  is  safer,  to  acknowledge 
one's  weakness.  After  awhile  we  conclude  it  is  every  way 
more  reasonable  to  draw  up  our  forces  in  battle  array,  and 
then,  instead  of  opening  fire,  calmly  count  each  other's 
rank  and  file,  in  order  that  the  weaker  may  leave  the 
stronger  in  possession  of  the  field.  It  is  the  growth  of 
this  practical  good  sense  which  constantly  suggests  the 
advantage,  in  the  long  run,  of  counting  the  enemy's 
forces,  and  retiring  from  the  contest  when  they  are  too 
strong  for  us,  that  distinguishes  the  self-governing  nation 
from  other  nations. 

At  the  root  of  all  civil  institutions  is  conflict,  incessant 
conflict.  Out  of  the  continuous  struggles  of  man  with 
man,  has  gradually  grown  the  complex  political  structures 
of  ancient  and  modern  times.  The  theory  that  political 
relations  are  based  on  contract,  which  prevailed  for  so 
long  a  period,  is,  however,  only  an  incomplete  truth.  It 
is  true,  that  in  civilized  communities,  men,  in  a  sense 
tacitly  agree,  each  to  recognize  the  rights  of  the  others, 
and  to  perform  the  obligations  corresponding  to  those 
rights,  but,  really,  behind  or  above  this  agreement  stands 
the  will  and  the  force  of  the  political  group  to  which  the 
parties  belong.  One  may  cheerfully,  actively,  and,  to  all 
appearances,  voluntarily  recognize  the  rights  of  another, 
and  perform  all  the  obligations  due  to  him ;  and  he  may 
act  in  the  same  way  to  all  others  in  the  state,  but  it  is  not 
because  he  feels  that  he  has  so  agreed,  but  because  he 
must  do  so  ;  the  obligation  is  based  on  force,  of  some 
character.  He  may  consider  it  a  moral  obligation,  or 


60  POLITICS. 

even  a  religious  one  ;  but  either,  or  both,  are  no  doubt 
the  outward  expression  of  the  subconsciousness  of  a  com- 
manding physical  power. 

What  we  know  of  social  evolution  leads  to  the  same 
conclusion.  The  strong  influence  of  the  blood  tie  in 
early  society  grew  out  of  the  family,  which  may  be  called 
the  primitive  political  cell.  Originally,  in  the  family,  the 
wife  or  wives,  children  and  dependants  had  no  separate 
rights  ;  the  individual  man  was  socially  and  politically 
nobody.  He  had  no  recognized  existence  outside  the 
family.  He  had  no  rights,  nor  was  he  subject  to  any 
obligations,  apart  from  the  family.  He  could  not  own 
property  or  make  contracts,  except  through  the  family. 
All  transactions  were  family  affairs,  and  family  dealt  or 
warred  with  family,  and  not  with  its  individual  members. 
Sir  Henry  Maine  says  :  "  There  was  no  brotherhood 
recognized  by  our  savage  forefathers,  except  actual  con- 
sanguinity regarded  as  a  fact.  If  a  man  was  not  of  kin  to 
another  there  was  nothing  between  them." 

In  the  original  family  group  the  father  was  a  despot. 
His  power  extended  to  life  and  death  ;  he  was  the  one 
who  gave  commands,  who  judged  when  they  were  violated, 
and  who  inflicted  punishment.  All  the  essential  attributes 
of  political  government  as  now  developed,  executive, 
judicial  and  legislative,  were  there  enfolded  in  the  germ. 

As  the  family  grew,  it  became  what  in  India  is  known 
as  the  Joint-Undivided  Family  ;  that  is,  the  numerous 
descendants  of  a  common  ancestor  constitute  a  family 
association,  in  which,  as  in  the  simple  family,  the  in- 
dividual is  merged.  In  these  larger  families,  the  places 
of  honor  are  reserved  for  those  of  the  purest  blood,  who 
are  those  most  directly  allied  to  the  founder. 

In  the  earlier  stages  of  society  members  were  taken 
into  the  family  by  the  fiction  of  adoption  ;  enemies  were 


THE  FORCE  OF  THE  NATION.  6l 

captured  and  made  slaves,  or  whole  tribes  were  conquered, 
which,  frequently  for  purposes  of  protection,  were  also 
adopted.  Always,  however,  there  was  first  the  fact  and 
then  the  theory  of  the  blood  tie.  Tribes  were  aggregated 
and  grew  into  small  nations  or  states,  and  thence  into 
larger  ones.  When  the  little  primitive  community  ex- 
panded into  the  village,  paternal  despotism  in  the  family 
still  continued.  Sir  Henry  Maine  further  recounts,  that 
in  the  Teutonic  village  communities  ' '  each  family  in  the 
township  was  governed  by  its  own  free  head,  or  pater- 
familias. The  precinct  of  the  family  dwelling  house  could 
be  entered  by  nobody  but  himself  and  those  under  his 
patria  potestas,  not  even  by  officers  of  the  law,  for  he  him- 
self made  laws  within  and  enforced  laws  made  without.  '* 
Here  is  the  sovereign  state  in  embryo. 

It  is  true  that,  in  the  earlier  stages  of  society,  the  pop- 
ular imagination  invested  the  ruler  with  divine  attributes 
and  authority,  and  we  know  that  much  of  the  obedience 
to  kingly  authority  arose  out  of  this  superstition.  This 
was  the  motive  only ;  the  fact  remains  unaffected  by  it, 
that  then  there  was  one  man  who  was  recognized  by  all 
as  expressing  the  national  will,  and  who  could  wield  the 
national  force.  The  motives  which  at  this  day  induce 
free,  civilized  men  cheerfully  to  contribute  their  forces  to 
carry  out  the  will  of  the  nation  may  be  more  intelligent, 
but  after  all,  as  in  primitive  days,  they  are  only  influences 
which  may,  more  or  less,  control  the  formation  and  ex- 
pression of  the  national  will  and  use  of  the  national 
force,  but  are  not  themselves  either  of  those  factors  in  the 
life  of  the  state. 

There  is  this  to  be  noted  with  reference  both  to  the 
will  and  the  force  of  the  group,  that  in  the  simpler  com- 
munities they  act  more  directly  than  in  highly  civilized 
states.  In  the  primitive  family,  the  father  called  up  the 


62  POLITICS. 

offender,  tried,  condemned,  and  punished  him  immedi- 
ately. In  the  tribe  the  common  assemblage,  with  almost 
equal  swiftness,  adjudicated  and  inflicted  the  penalty, 
and  we  know  that  in  the  semi-civilized  despotisms  of 
Asia  and  Africa,  the  action  of  the  central  power  on  of- 
fenders seems  to  us  startlingly  direct  and  sudden.  Our 
more  indirect  way  of  using  the  general  force  to  accom- 
plish political  and  social  ends  is  the  consequence  of  that 
specialization  which  inevitably  follows  upon  advancing 
civilization.  On  the  economical  side  of  life,  we  see  every 
day  that  very  few  persons  expend  their  forces  directly  upon 
the  object  which  is  the  ultimate  aim  of  their  efforts.  The 
mechanic,  whose  desire  is  to  obtain  a  coat,  will  have 
to  work  a  certain  length  of  time,  perhaps  at  laying  a 
brick  wall,  in  order  to  get  sufficient  money  to  buy  the 
needed  article.  An  analysis  will  show  that  his  individual 
force  has  distributed  itself  through  many  channels  before 
it  produces  the  object  of  his  desire.  So  in  the  political 
relations,  there  is  a  division  of  labor,  and  in  the  highly 
developed  nation,  the  general  force  is  usually  set  in 
motion,  and  reaches  its  object  only  by  a  series  of  indirect 
methods.  In  a  simple  democracy,  the  people  would 
assemble,  adopt  the  needed  law  instantly,  and  perhaps 
execute  it  with  equal  celerity  ;  but  in  a  representative 
republic,  many  instrumentalities  have  to  be  used  before 
the  law  can  be  enacted,  and  before  the  force  of  the  nation 
can  be  brought  to  bear  to  compel  its  execution. 


CHAPTER  VI. 

LOCAL    POWERS. 

THE  nation  is  in  structure  a  fusion  and  expansion  of  a 
series  of  units,  which  were  originally  little  sovereignties, 
and  which  in  their  new  relations  as  departments,  or  coun- 
ties, or  municipalities,  retain  portions  of  their  old  sover- 
eign powers.  Thus  the  nation  consists,  as  it  were,  of  a 
series  of  political  circles  through  which  its  power  is  dis- 
tributed. Local  institutions  find  their  beginnings  in 
these  units.  National  institutions  are  the  instrumentali- 
ties which  come  into  existence  because  of  the  aggregation 
of  the  units. 

Thus  far  the  nation  has  been  considered  as  the  syno- 
nym of  the  sovereign  state,  and  as  a  homogeneous  or- 
ganic being  ;  as  one  body  with  one  will,  and  a  common 
force.  In  such  a  state,  theoretically,  the  central  national 
will  would  be  expressed  by  the  authorized  person  or 
body  of  persons  directly  on  all  the  relations  existing 
between  the  individuals  of  the  state  with  reference  to 
which  the  national  will  had  power  to  express  itself.  There 
would  be  one  central  administration  which  would  act 
directly  upon  everybody,  as  we  might  suppose  would  be 
the  case  in  a  pure  despotism  where  there  are  no  laws  ex- 
cept the  will  of  the  despot  for  the  time  being. 

In  fact,  however,  very  few  sovereign  states  have  ever 
existed  which  were  not,  historically  considered,  an  accre- 
tion of  what  may  be  called  political  units.  Every  nation 
is  socially  a  growth,  and  politically,  in  part,  a  welding  to- 
gether of  units  of  various  sizes,  and  in  part  an  expansion 


64  POLITICS. 

of  these  original  units.  It  must,  however,  always  be 
borne  in  mind  that  the  unit  is  not  the  man,  but  a  group 
of  men.  Speaking  of  the  politics  of  the  Greeks  in  the 
earliest  stages  of  authentic  Hellenic  history,  Grote  says 
that,  "in  respect  to  political  sovereignty  complete  dis- 
union was  among  their  most  cherished  principles.  The 
only  source  of  supreme  authority  to  which  a  Greek  felt 
respect  and  attachment  was  to  be  sought  within  the  walls 
of  his  own  city."  "Political  disunion — sovereign  au- 
thority within  the  city  walls — thus  formed  a  settled 
maxim  in  the  Greek  mind.  The  relation  between  one 
city  and  another  was  an  international  relation,  not  a  rela- 
tion subsisting  between  members  of  a  common  political 
aggregate."*  Moreover,  "the  Roman  territory  was  di- 
vided in  the  earliest  times  into  a  number  of  clan  districts. 
*  *  *  Every  Italian,  and  doubtless,  also,  every  Hel- 
lenic canton,  must,  like  that  of  Rome,  have  been  divided 
into  a  number  of  groups  associated  at  once  by  locality, 
and  by  clanship.  Such  a  clan  settlement  is  the  '  house  ' 
of  the  Greeks.  The  corresponding  Italian  terms  '  house  ' 
or  '  building  '  indicate,  in  like  manner,  the  joint  settle- 
ments of  the  members  of  a  clan,  and  these  come  by 
easily  understood  transition  to  signify,  in  common  use, 
hamlet  or  village."  "  These  customs  accordingly  having 
their  rendezvous  in  some  stronghold,  and  including  a 
certain  number  of  clanships,  form  the  primitive  political 
unities  with  which  Italian  history  begins."  f  And,  accord- 
ing to  Sir  Henry  Maine,  "  the  true  view  of  India,  is  that, 
as  a  whole,  it  is  divided  into  a  vast  number  of  independ- 
ent, self-acting,  organized  social  groups — trading,  manu- 
facturing, cultivating."  J  In  England,  says  Stubbs,  "the 

*  "  History  of  Greece,"  ii.,  257. 

f  "  Mommsen,  History  of  Rome,"  i.,  pp.  63,  65. 

\  "  Village  Communities,"  New  York,  1876,  p.  57. 


LOCAL   POWERS.  65 

unit  of  the  constitutional  machinery,  the  simplest  form  of 
social  organization,  is  the  township,  the  villata  or  vicus."* 

The  political  unit  of  every  nation  was,  originally,  a 
little  nation  usually  possessing  all  political  powers,  legis- 
lative, executive,  administrative,  and  judicial,  in  a  con- 
fused mixture ;  and  in  expanding  into  the  great  state,  or 
becoming  fused  with  other  similar  units^there  has  not 
ordinarily  been  a  surrender  of  all  power  by  the  smaller 
unit.  Actually,  much  of  the  old  local  authority  has  been 
retained  in  these  smaller  units  which  afterwards  become 
the  subordinate  departments,  counties,  communes,  or 
municipalities  of  the  larger  state^j  The  sovereign  ruling 
over  this  congeries  of  units  which  has  become  the  nation  has 
power  to  interpose  his  superior  will  to  change  the  old- 
time  constitution  of  the  original  political  unit,  but  more 
frequently  he  does  not  ;  he  retains  its  form,  and  perhaps 
enlarges  and  more  clearly  defines  its  powers.  Sometimes 
this  unit  is  in  the  nature  of  a  root  from  which  a  system 
of  districts,  county,  city,  and  state,  or  department  gov- 
ernments grow  ;  a  series  of  expanding  branches.  Through 
such  processes  the  institutions  of  a  country  grow  up. 
What  are  these  ?  They  are  the  instrumentalities  through 
which  the  general  will  expresses  itself,  and  the  general 
force  acts. 

It  is  always  to  be  remembered  that,  "what  the  sov- 
ereign permits,  he  commands,"  because  the  act  of  per- 
mission implies  its  antithesis,  the  power  to  prohibit. 
Hence,  if  a  township  has  now  certain  political  powers, 
and  the  county  certain  others,  and  the  city  still  different 
ones,  and  these  are  exclusive  within  their  several  spheres, 
it  by  no  means  follows  that  these  are  subtractions  from  the 
central  national  will,  and  reduce  itpro  tanto.  The  central 
will  permits  them,  therefore  it  wills  them.  These  town- 
"  Constitutional  History  of  England,"  i.,  82. 


66  POLITICS. 

ships  and  political  subdivisions  are  not  sovereign  powers  •, 
they  are  strictly  subordinate,  because  there  is  a  power  at 
some  other  point  of  the  political  fabric  which  can  change 
and  modify  them.  The  difficulty  of  clearly  perceiving  the 
unity  of  the  sovereign  nation  is  largely  because  we  see 
that  all  political  action  takes  place  in  groups  or  circles, 
generally  of  no  great  magnitude.  The  nation  at  large, 
the  national  will  and  force,  are  more  or  less  vague  ab- 
stractions. The  political  movement  which  we  see  about 
us,  is  in  wards  of  cities,  or  in  election  precincts,  or  town- 
ships, or  counties,  or,  in  the  United  States,  in  the  state. 
Every  subdivision  has  a  certain  jurisdiction. 

The  will  and  power  of  the  nation  distribute  themselves 
through  these,  by  means  of  political  institutions.  The 
growth  of  these  is  to  be  studied  in  the  history  of  the  ex- 
pansion or  the  aggregation  of  the  original  units  to  the 
nation. 

The  political  institutions  of  a  country  constitute  the 
framework  of  the  nation.  They  are  the  bones,  heart  and 
lungs  of  the  commonwealth,  but  they  are  not  the  life- 
blood  which  momently  courses  through  the  arteries  and 
veins.  Institutions  always  tend  to  become  permanent  in 
form,  though,  among  progressive  people,  the  spirit  which 
animates  them  may  change  every  half  century.  They 
may  be  divided  into  two  classes,  local  and  national.  In 
the  states  which  are  the  product  of  long  growth,  as  those 
of  Europe,  the  various  circles  or  districts  of  administra- 
tion, as  a  rule,  represent  the  different  points  where  sov- 
ereignty has  resided  before  a  further  growth  or  fusion. 
The  towns,  counties,  or  departments,  as  the  case  may  be, 
retain  the  substance  of  the  original  administrative  pow- 
ers, though,  of  course,  modified,  or  more  or  less  super- 
vised by  the  superior  power  from  time  to  time.  When 
several  of  these  smaller  sovereignties  are  united,  then  the 


LOCAL   POWERS.  6/ 

necessity  for  national  institutions  arises.  The  peculiarity 
of  Asiatic  political  growth  is  that  of  arrested  development. 
In  the  Orient,  small  communities  have  petrified,  and  are 
held  together  by  a  central  despotism,  without,  however, 
arteries  throughout  the  whole  system  for  the  free  circula- 
tion of  power.  In  Western  Europe,  the  local  institutions 
have  been  more  flexible,  and  have  expanded  by  degrees 
into  those  of  the  nation.  We  thus  see  that  even  in  the 
perfectly  developed  nation  the  national  will  is  single  only 
in  the  sense  that  there  is,  and  must  be,  the  ability  in  some 
person  or  persons  within  the  organism  to  form  and  express 
it  in  the  last  resort,  and  to  use  the  national  force  to  effect- 
uate its  mandates.  It  is  through  all  the  institutions  of 
the  state,  both  national  and  local,  that  this  sovereign  will 
expresses  itself,  and  is  thus  apparently  shared  by  many 
departments,  but  it  will  be  found  in  every  state  that  every 
district  or  department  of  administration  traces  its  title 
through  a  superior  power,  and  that  they  really  all  exist 
because  of  the  permission  of  this  higher  power — the  sov- 
ereign. 


CHAPTER   VII. 

INSTINCT    AS    A    FACTOR    OF    POLITICAL    ORGANIZATION. 

AN  error  in  much  political  writing  is  the  overestimation 
of  intelligence  and  the  underestimation  of  instinct.  This 
appears  with  prominence  in  the  writings  of  the  seven- 
teenth and  eighteenth  centuries ;  in  those  of  Grotius, 
Hobbes,  Spinoza,  PufTendorf,  Locke,  Rousseau,  in  all, 
in  fact,  where  the  origin  of  government  is  explained  by  the 
hypothesis  of  a  social  contract ;  for  this  hypothesis  in- 
volves the  idea  of  intelligent  beings,  in  the  earliest  stages 
of  history,  consciously  and  deliberately  setting  about  the 
construction  of  a  government.  The  influence  of  this 
contract  theory  on  political  thought  lingers  even  to  this 
day,  though  in  a  constantly  diminishing  degree.  At  / 
present  it  may  be  considered  as  having  generally  given  j 
place  to  the  view  first  advanced  by  Aristotle,  which  is,  in 
brief,  that  man  is  by  nature  a  political  being,  and  that 
government  is  a  result  of  social  growth,  and  is,  moreover, 
a  necessary  condition  of  human  existence.  Accepting 
this  position,  we  have  to  consider  the  method  and  forces 
of  this  growth.  Among  the  purely  human  forces  we  find 
intelligence  and  instinct.  It  is  with  the  latter  that  we 
have  here  mainly  to  do,  and  especially  to  point  out  the 
nature  and  extent  of  its  operation  in  the  field  of  politics. 

Instinct  has  been  defined  in  a  general  way  as  ' '  a  generic 
term,  comprising  all  those  faculties  of  mind  which  lead 
to  the  conscious  performance  of  actions  that  are  adaptive 
in  character,  but  pursued  without  necessary  knowledge  of 


INSTINCT  AS  A   FACTOR.  69 

the  relation  between  the  means  employed  and  the  ends 
attained."  It  may,  therefore,  be  well  illustrated  by  con- 
trasting it  with  intelligence.  "Intelligence,"  says  Prof. 
Joseph  Le  Conte,  in  substance,  "works  by  experience, 
and  is  wholly  dependent  on  individual  experience  for  the 
wisdom  of  its  actions  ;  while  instinct,  on  the  other  hand, 
is  wholly  independent  of  individual  experience.  If  we 
regard  instinct  in  the  light  of  intelligence,  then  it  is  not 
individual  intelligence  but  cosmic  intelligence,  or  the 
laws  of  nature  working  through  inherited  brain  structure 
to  produce  wise  results.  Intelligence  belongs  to  the  in- 
dividual, and  is  therefore  variable,  that  is,  different  in 
different  individuals,  and  also  improvable  in  the  life  of 
the  individual  by  experience.  Instinct  belongs  to  the 
species,  and  is  therefore  the  same  in  all  individuals,  and 
unimprovable  with  age  and  experience.  Whatever  differ- 
ence in  the  skill  of  individuals  or  improvement  with  age 
is  observed,  must  be  accredited  to  the  intelligence  of  the 
individual,  not  to  the  inherited  element.  In  a  word,  in- 
telligent conduct  is  self-determined  and  becomes  wise  by 
individual  experience.  Instinctive  conduct  is  predeter- 
mined in  wisdom  by  brain  structure.  The  former  is  free; 
the  latter  is,  to  a  large  extent,  automatic."  * 

As  to  the  origin  of  instinct,  it  can  hardly  be  said  that 
any  theory  has  as  yet  gained  universal  assent,  but  no 
hypothesis  appears  more  worthy  of  acceptance  than  that 
which  regards  it  as  habit  grown  to  be  hereditary.  An  act 
frequently  performed  in  the  consciousness  of  a  specific 
purpose  may  continue  to  be  performed,  through  the 
determinative  force  of  structure,  after  the  consciousness 
of  the  purpose  of  the  act  has  been  lost.  When  this 
peculiarity  of  structure,  or  the  mental  bias  caused  by  the 
frequent  and  continued  exercise  of  the  mind  in  a  given 
*  Popular  Science  Monthly  for  October,  1875. 


70  POLITICS. 

direction,  has  become  hereditary,  the  habit  has  grown 
into  an  instinct. 

As  we  descend  in  the  scale  of  animal  life,  we  find  that 
the  ratio  of  the  instinctive  to  the  intelligent  acts  of  the 
several  individuals  continually  increases, — that  is,  the  ac- 
tions of  animals  of  any  lower  order  are  more  nearly  exclu- 
sively instinctive  than  those  of  animals  of  any  higher 
order ;  but  it  does  not  follow  from  this  that  there  are 
absolutely  more  and  higher  manifestations  of  instinct  in 
mollusks  than  in  man  ;  only  that  relatively  to  the  whole 
of  the  actions  of  the  mollusks  the  instinctive  form  a  larger 
part  than  is  the  case  in  man.  "  Intelligence  and  instinct 
are  not  mutually  exclusive,  as  some  seem  to  suppose ; 
the  one  is  not  simply  a  characteristic  of  man  and  the  other 
of  animals,  but  they  coexist  in  varying  relative  propor- 
tions throughout  the  animal  kingdom.  "*  In  the  sum  of 
human  actions,  therefore,  we  may  expect  to  find  a  large 
number  that  are  purely  instinctive  in  character.  Import- 
ant among  the  acts  of  this  class  are  those  which  bear  on 
the  political  organization  of  society. 

The  long  continuance  of  a  people  under  any  given 
political  order  engenders  a  habit  of  political  thought  and 
action  which  ripens  into  a  political  instinct,  and  becomes 
powerful  in  determining  the  form  of  institutions  and  the 
direction  of  political  progress.  In  the  early  stages  of 
political  life  changes  are  less  frequent  than  in  the  later 
stages  ;  and  opportunity  is  thereby  offered  for  the  ideas  of 
social  organization  peculiar  to  primitive  times  to  impress 
themselves  upon  the  mind,  and  in  the  course  of  centuries 
of  political  monotony,  to  ripen  into  a  firmly  fixed  instinct. 
Thus  the  political  instincts  of  a  race  have  their  origin  in 
a  pre-historic  age,  in  an  age  when  generation  after  genera- 

*  Prof.  Joseph  Le  Conte  in  Popular  Science  Monthly,  October^ 
1875' 


INSTINCT  AS  A  FACTOR.  71 

tion  passes  away,  leaving  no  record  of  change  in  social 
forms,  or  of  the  acquisition  of  new  ideas.  And  it  is  this 
political  instinct  that  must  be  taken  account  of  if  we 
would  fully  understand  later  political  progress  ;  it  is  in 
its  force  and  persistence  that  we  discern  the  main  cause 
of  that  tendency  displayed  in  kindred  nations  to  preserve 
in  their  governments  the  essential  featuies  of  the  primitive 
political  institutions  of  the  race  to  which  they  belong. 

One  of  the  most  striking  results  of  the  influence  of  a 
political  instinct  common  to  the  Western  nations  is  to  be 
found  in  the  analogies  which  may  be  observed  between 
the  political  institutions  of  the  different  states,  taken  in 
connection  with  the  fact  that  their  common  features  are 
at  the  same  time  the  characteristic  features  of  the  primitive 
Aryan  government.  In  speaking  of  the  early  institutions 
of  the  Aryans,  Freeman  says  :  "  The  first  glimpse  which 
we  can  get  of  the  forms  of  government  in  the  early  days 
of  kindred  nations  shows  them  to  have  been  wonderfully 
like  one  another.  Alike  among  the  old  Greeks,  the  old 
Italians,  and  the  old  Germans,  there  was  a  king  or  chief 
with  limited  power,  there  was  a  smaller  council  of  nobles 
or  of  old  men,  and  a  general  assembly  of  the  whole 
people.  Such  was  the  old  constitution  of  England,  out 
of  which  its  present  constitution  has  grown  step  by  step. 
But  there  is  no  reason  to  think  that  this  was  at  all  pecu- 
liar to  England,  or  even  peculiar  to  those  nations  who 
are  most  nearly  akin  to  the  English.  There  is  every 
reason  to  believe  that  this  form  of  government,  in  which 
every  man  had  a  place,  though  some  had  a  greater  place 
than  others,  was  really  one  of  the  possessions  which  we 
have  in  common  with  the  whole  Aryan  f  <mily."  *  This 
appears,  then,  as  the  type  of  the  Aryan  government.  The 
existence  of  a  strong  political  instinct  would  lead  us  to 
*  "  General  Sketch  of  History,"  p.  6. 


72  POLITICS. 

expect  to  find  this  type  perpetuated  in  the  later  history  of 
the  race,  and,  in  fact,  we  find  that  its  essential  features 
have  been  maintained  in  many  governments.  Wherever 
variations  from  the  type  have  occurred,  they  have  been 
either  the  result  of  a  more  complete  development,  and 
carrying  out  of  the  hereditary  scheme,  or  due  to  influ- 
ences, like,  for  example,  that  of  the  church,  foreign  to 
the  hereditary  traditions  of  the  nation  in  question.  One 
of  the  prominent  characteristic  features  of  this  typical  or 
primitive  government  is  the  co-existence  of  three  ele- 
ments :  i,  the  national  chief  with  limited  authority  ; 
2,  the  council,  comprising  men  of  distinguished  birth,  or 
of  extraordinary  experience  and  wisdom  ;  3,  the  assembly 
of  the  people,  in  which  the  several  individuals  comprising 
the  people  act  either  immediately  or  through  their  repre- 
sentatives. 

With  a  very  few  exceptions,  every  sovereign  and  subor- 
dinate state  of  the  Aryan  race  is  marked  by  the  promi- 
nent characteristics  of  the  primitive  Aryan  government. 
This  fact,  taken  by  itself,  does  not  appear  of  great  signifi- 
cance. When,  however,  it  is  remembered  that  this  pecu- 
liar organization  of  the  central  government  is  almost 
exclusively  confined  to  Aryan  states,  and  to  states  in 
which  the  Aryan  influence  predominates,  and  that  among 
these  states  it  is  virtually  universal,  there  appears  to  be 
something  more  than  a  mere  coincidence.  This  view  is 
further  confirmed  by  the  essential  similarity  between  the 
modern  governments  of  the  Aryan  race  and  that  which 
has  been  pointed  out  as  the  primitive  and  typical  govern- 
ment; and  this  indicates,  in  the  race,  an  inborn  force  lead- 
ing it  to  resist  foreign  influences,  and  seek  the  realization 
of  its  primitive  ideals. 

The  fact  of  a  striking  similarity  between  the  govern- 
ments at  present  existing  and  the  old  Aryan  government 


INSTINCT  AS  A  FACTOR.  73 

is  by  no  means  the  strongest  indication  of  an  instinctive 
force  operating  to  determine  political  forms  ;  for  we  have 
only  to  assume  a  standpoint  a  few  centuries  back  in  order 
to  discover  that  then,  apparently,  no  such  similarity  ex- 
isted. Of  vastly  more  importance  is  the  persistence  of  a 
tendency,  everywhere  manifest  in  the  political  develop- 
ment of  Western  nations,  to  overcome  the  result  of  foreign 
influences,  and  reestablish  original  forms.  The  com- 
monwealth's  men  set  aside  the  king  and  lords,  and  pro- 
posed to  establish  a  new  order  of  things.  In  thus  reor- 
ganizing the  government  they  ran  counter  to  the  political 
instinct  of  the  nation,  and  the  ultimate  failure  of  their 
scheme  was,  therefore,  a  foregone  conclusion.  The  king, 
lords,  and  commons  stood  for  the  primitive  king,  coun- 
cil, and  assembly.  Any  other  form  of  government  failed 
to  meet  the  instinctive  demands  of  the  nation,  and  insure 
political  stability.  Cromwell  at  last  appreciated  that 
there  was  no  hope  for  the  commonwealth  except  in  a 
return  to  the  ancient  threefold  division  of  power,  which 
was  effected  through  the  institution  of  the  "  other  house," 
and  the  office  of  Lord  Protector.  The  republicans,  in 
their  attempts  to  carry  out  their  original  plans,  had, 
therefore,  to  contend  not  merely  with  an  opposing  party 
called  the  royalists,  but  they  also  carried  on  a  hopeless 
struggle  against  a  political  tendency  deriving  its  force 
from  a  strong  national  instinct. 

The  antagonism  between  the  national  or  race  instinct 
and  the  existing  organization  in  any  given  case  is  brought 
about  either  through  the  conscious  efforts  of  powerful 
political  leaders  to  carry  out  their  own  ideas  regardless 
of  the  early  history  of  the  nation,  or  through  the  growth 
of  a  great  institution  or  of  great  institutions  standing  on  a 
basis  independent  of  the  national  life,  but  determining 
certain  features  of  the  natioml  organization.  The  first 
4 


74  POLITICS. 

case  is  illustrated  by  the  English  commonwealth  in  its 
early  years,  and  by  the  first  attempts  of  the  French  to 
found  a  republic  ;  the  second  by  the  growth  of  the  church. 
What  specially  distinguishes  the  form  of  the  national 
government  in  the  middle  ages  from  that  of  earliest  and 
latest  times  is  the  existence  of  the  estate  of  the  clergy  by 
the  side  of  the  third  estate,  and  of  the  estate  of  the  nobles. 
Eliminate  the  estate  of  the  clergy  from  the  mediaeval  gov- 
ernments, and  they  assume  essentially  the  same  form  as 
the  primitive  Aryan  government  ;  and  to  accomplish  this 
has  been  one  of  the  aims  of  political  progress  since  the 
beginning  of  the  political  power  of  the  church.  The 
retention  of  political  power  by  the  clergy  as  a  separate 
branch  of  the  legislature  was  a  standing  protest  against  an 
instinctive  tendency  that  has  finally  culminated  in  our 
day  in  the  overthrow  of  the  church  as  a  separate  and  dis- 
tinct-factor in  legislation. 

The  force  of  instinct  in  political  development  is  fur- 
thermore illustrated  by  the  parallel  constitutional  growth 
of  kindred  nations,  which  in  their  progress  have  been 
largely  independent  of  one  another  and  independent  of 
common  foreign  influences.  The  English  and  the  Swedes 
are  such  nations.  In  England  the  essential  features  of 
the  primitive  Aryan  constitution  not  only  mark  the  ex- 
isting government,  but  also  characterize  that  form  of 
government  which  the  English  people  have  struggled  to 
maintain  throughout  their  history.  The  king,  the 
witenagemote,  and  the  folkmote  shared  the  supreme  power 
probably  in  all  the  earliest  kingdoms.*  But  as  the 
primitive  kingdoms  coalesced,  the  folkmote  was  either 
neglected  or  continued  as  a  local  institution,  while  the 
witenagemote  remained  the  supreme  council  of  the  new 
government  of  enlarged  dominion.  Thus  in  those  states, 

*  Stubbs*  "Constitutional  History  of  England,"  I.,  119. 


INSTINCT  AS  A   FACTOR.  /J 

as  Wessex  and  Mercia,  which  were  aggregations  of  smaller 
states,  there  is  no  evidence  of  the  existence  of  the  folk- 
mote.  So  also,  after  the  consolidation  of  the  Anglo- 
Saxon  kingdoms  into  the  kingdom  of  England,  we  hear 
only  of  the  witenagemote.  The  folkmotes  of  the  old  king- 
doms became  the  popular  assemblies  of  the  shires ;  and 
in  the  larger  kingdom  formed  by  their  union  it  was  im- 
possible for  the  whole  body  of  freemen  to  participate 
directly  in  the  affairs  of  the  government,  and  as  yet  no 
means  had  been  discovered  through  which  their  authority 
could  be  expressed  indirectly.  After  the  establishment  of 
a  general  government  for  England,  and  the  relegation  of 
the  folkmote  to  the  subordinate  position  of  a  local  assem- 
bly, the  nation  entered  upon  a  political  struggle  which 
resulted,  after  the  introduction  of  a  system  of  representa- 
tion, in  setting  up  a  popular  assembly  constituted  through 
the  medium  of  representation,  and  in  restoring  to  the 
government  its  ancient  and  hereditary  form. 

In  England,  as  throughout  Christendom,  the  clergy, 
under  their  peculiar  and  independent  organization,  did 
not  hesitate  to  demand  separate  recognition  ;  and  the 
lords,  the  knights  of  the  shires,  and  the  lepresentatives 
of  the  cities  had  separate  origins  and  separate  interests,  in 
which  each  class  might  have  found  ample  reason  for  the 
formation  of  a  distinct  assembly.  But  such  was  not  to  be 
the  order.  The  clergy  were  merged  in  the  lords,  while 
the  representatives  of  the  counties  and  the  representatives 
of  the  cities  were  joined  to  form  a  lower  house,  in  sym- 
pathy with  the  people,  and  answering  to  the  folkmote  of 
the  primitive  kingdom. 

The  history  of  the  Scandinavian  nations  shows  the 
same  general  political  tendency  ;  yet  the  various  stages  of 
development  were  attained  here  later  than  in  England. 
In  the  earliest  period  over  which  historical  research  has 


j6  POLITICS. 

thrown  any  clear  light,  these  nations  appear  in  a  state  of 
political  transition.  The  tendency  which  had  led  to 
separation  and  to  the  establishment  of  small  independent 
kingdoms  had  been  superseded  by  a  new  phase  of  pro- 
gress towards  unity.  The  petty  kingdoms  had  lost  some- 
what of  their  independence,  and  appear  as  provinces  in 
a  confederation,  at  the  head  of  which  stood  the  king. 
The  political  status  of  the  Swedes  at  this  time  corre- 
sponded to  that  of  the  English  subsequent  to  the  union  of 
the  Anglo-Saxon  kingdoms  and  prior  to  the  accession  of 
the  commons  to  power.  The  political  drift  of  the  two 
kingdoms,  England  and  Sweden,  which  had  been  formed 
by  the  aggregation  of  the  preexisting  smaller  kingdoms, 
was  toward  the  realization  of  the  primitive  form  of  govern- 
:.i  nt ;  yet  in  Sweden,  powerful  influences  arose  through 
\.liich  the  attainment  of  this  end  was  for  a  long  time 
'.clayed.  Prominent  among  these  influences  was  the 
..rowth  of  independent  and  strongly-marked  social  classes 
— the  nobles,  the  clergy,  the  burghers,  and  the  peasants. 
These  several  classes,  whose  individuality  was  becoming 
continually  more  marked,  furnished  the  basis  of  a  system 
of  class  representation,  yet  at  the  end  of  the  fifteenth  cen- 
tury no  such  system,  in  any  degree  of  perfection,  had  come 
into  existence.  The  general  affairs  of  the  kingdom  were 
deliberated  in  meetings  of  the  council ;  for  as  in  England 
the  witenagemote  remained  an  institution  of  the  general 
government  after  the  folkmote  had  been  relegated  to  the 
position  of  a  local  assembly,  so  in  Sweden  the  king  was 
surrounded  by  his  council  and  acted  under  their  advice, 
before  the  general  popular  assembly  had  come  into  ex- 
istence, and  while  the  ancient  popular  assemblies  re- 
mained as  the  assemblies  of  the  provinces. 

In  the  course  of  time,  representatives  of  the  towns  and  of 
districts  in  the  country  were  invited  to  meetings  of  the 


INSTINCT  AS  A   FACTOR.  7? 

council,  and  in  this  way  there  was  developed  a  system  of 
representation,  and  the  meetings  of  the  council  grew  into 
the  parliament,  just  as  the  meetings  of  the  witenagemote, 
through  the  addition  of  the  representatives  of  the  shires 
and  of  the  towns,  grew  into  the  parliament  of  England. 
At  first,  as  in  England,  all  met  in  a  single  assembly.  The 
next  step  appears  to  have  been  a  division  into  two  bodies, 
the  temporal  and  the  spiritual  magnates  constituting  one, 
representatives  of  the  cities  and  of  the  peasants  forming 
the  other.  Here  Sweden  was  following  a  parallel  to  the 
line  of  English  political  history,  but  the  forces  which  had 
produced  the  strong  distinction  of  classes  changed  the  ten- 
dency later,  and  led  to  the  organization  of  four  houses, 
through  the  influence  of  which  the  fusion  of  class  interests 
was  hindered  and  the  spirit  of  the  middle  ages  continued 
into  the  present  century.  But  ultimately  the  instinctive 
force  that  had  been  checked  by  the  rise  of  classes  asserted 
itself,  and  Sweden  attained  a  form  of  government  bearing 
an  essential  likeness  to  that  of  the  early  Aryans,  and  also 
to  the  existing  government  of  England  and  of  the  United 
States. 

In  England  and  Sweden,  two  nations  of  a  common  stock, 
but  of  widely  different  circumstances,  there  is  revealed 
the  same  inherent  impulse  which  has  given  to  both,  in 
spite  of  the  different  circumstances,  essentially  the  same 
course  of  political  progress.  The  primitive  Anglo-Saxon 
kingdoms  correspond  with  the  petty  kingdoms  of  ancient 
Scandinavia.  These,  in  both  cases,  gave  way  to  a  central 
government  in  the  ninth  century.  With  this  change,  the 
direct  participation  of  the  great  mass  of  the  freemen  in  the 
affairs  of  the  central  government  ceased  ;  and  in  the  thir- 
teenth century,  in  both  England  and  Sweden,  power  fell 
largely  into  the  hands  of  the  magnates,  who  constituted 
the  councils  and  limited  the  authority  of  the  kings.  In 


78  POLITICS. 

1265,  representatives  of  the  towns  and  of  the  counties  were 
added  to  the  English  council ;  and  in  1435,  representa- 
tives of  the  burghers  and  of  the  common  people  were  first 
called  to  unite  with  the  Swedish  council  in  the  formation 
of  a  national  assembly.  The  national  assemblies  of  the 
two  nations  thus  embraced  the  same  elements,  and  a  com- 
mon principle  of  division,  carried  out  in  both  cases,  would 
have  resulted  in  a  common  parliamentary  organization. 
But  through  purely  external  circumstances  the  individu- 
ality of  classes  became  more  marked  in  Sweden  than  in 
England,  thus  preventing  that  union  of  the  nobles  and 
the  clergy,  and  of  the  burghers  and  the  peasants,  through 
which  the  English  parliament  early  attained  its  present 
form. 

This  comparison  is  adequate  to  illustrate  the  point  to 
be  emphasized,  namely,  that  different  nations  branching 
from  the  same  stock  carry  with  them  into  their  different 
circumstances  a  common  political  instinct  which  gives 
them  an  impulse  toward  a  common  end,  and  that  the  re- 
sultant of  this  instinctive  impelling  force  will  vary  in  dif- 
ferent nations  according  to  ihe  environment,  or  according 
to  the  different  external  circumstances,  of  the  nations. 

In  directing  attention  to  similarity  of  organization  and 
similarity  of  political  development  as  the  result  of  an  in- 
stinctive impulse  common  to  different  nations  of  the  same 
stock,  it  is  not  intended  thereby  to  overlook  the  efficiency 
of  subordinate  forces  operating  to  the  same  end,  as,  for 
instance,  the  force  of  imitation.  But  when  we  have  ac- 
corded all  possible  importance  to  the  act  of  conscious 
imitation,  there  still  remains  the  fact  that  imitation  of 
political  institutions  takes  place  mainly  between  nations 
belonging  to  the  same  race,  and  only  to  a  very  limited 
extent  between  nations  of  different  races.  The  Roman 
may  copy  certain  institutions  from  the  Greek,  the  Ger- 


INSTINCT  AS  A   FACTOR.  79 

man  may  copy  from  the  Roman,  or  any  one  of  the 
modern  nations  of  the  West  may  copy  from  any  other, 
but  we  do  not  expect  to  find  nations  of  different  races 
copying  from  one  another.  The  presupposition  of  imi- 
tation in  political  matters  is  a  certain  inherited  propensity, 
an  instinctive  adaptation  to  certain  forms  of  thought  and 
to  certain  lines  of  action  ;  whence  it  would  appear  that 
the  influence  which  imitation  exerts  in  determining  politi- 
cal institutions  rests  on  an  instinctive  faculty.  Between 
nations  having  no  common  inheritance,  we  look  in  vain 
for  any  lasting  similarity  of  institutions,  except  in  cases 
where  members  of  one  nation  dominate  the  governmental 
affairs  of  another  of  a  different  race.  One  nation  may 
borrow  of  another,  although  the  two  share  in  no  common 
inheritance,  yet  the  borrowed  institution  finds  no  soil 
adapted  to  its  normal  growth,  and  it  either  passes  away 
or  becomes  unrecognizably  distorted.  On  the  other 
hand,  history  has  ample  record  of  institutions  transplanted 
from  one  kindred  nation  to  another  that  have  taken  root 
and  developed  a  strong  and  natural  growth. 

No  idea  has  contributed  so  much  to  put  linguistic 
science  on  a  firm  basis  and  to  insure  its  future  progress 
as  that  which  explains  the  existence  of  features  common 
to  the  several  languages  of  kindred  nations  on  the  ground 
of  inheritance  from  a  common  source.  The  same  idea 
applied  to  the  early  literature  and  mythology  of  Aryan 
nations  has  thrown  a  flood  of  light  over  subjects  that 
before  were  in  darkness  and  confusion.  In  like  manner 
the  science  of  politics  may  embody  a  similar  idea  in  its 
foundation  ;  it  may  start  with  the  notion  that  every  nation 
enters  upon  its  career  of  independent  existence  with  a 
certain  hereditary  endowment,  an  instinct  which  gives  to 
its  political  development  an  impulse  toward  a  pre-deter- 
mined  end  ;  and,  moreover,  that  this  instinct  is  common 


80  POLITICS. 

only  to  those  nations  which  belong  to  a  common  race. 
Through  its  failure  to  recognize  this  fact,  Herbert 
Spencer's  elaborate  system  of  philosophy  grows  weak 
when  it  reaches  the  realm  of  political  discussion:  He 
collects  his  data  promiscuously  from  the  most  varied 
sources — from  the  civilized  peoples  of  the  progressive 
West,  and  from  the  most  degraded  savages  of  the  Pacific 
islands — and  on  the  basis  of  this  information  makes  his 
inductions,  apparently  forgetting  that  inductions  made 
on  the  basis  of  facts  gathered  from  the  declining  or  petrified 
peoples  of  Central  Africa,  Further  Asia,  or  the  islands  of 
the  Pacific,  have  no  immediate  and  necessary  application 
to  the  Aryan  nations.  The  condition  of  these  peoples 
is  not  that  of  the  civilized  European  nations  minus  some 
centuries  of  progress ;  they  belong  to  another  great 
branch,  or  to  other  great  branches,  of  the  human  family, 
and  have  part  in  another  inheritance. 

Although  two  nations  may  belong  to  the  same  race  and 
be  endowed  with  essentially  the  same  political  instinct, 
yet  it  does  not  necessarily  follow  that  it  operates  with  the 
same  force  in  both  cases.  The  uninterrupted  continuity 
of  political  growth  in  one  nation  may  have  helped  to 
strengthen  the  instinctive  tendency,  while  in  the  other 
this  tendency  may  have  been  frequently  interrupted  by 
recurring  revolutions,  and  consequently  weakened. 
England  and  France  are  cases  in  point.  It  requires  no 
very  profound  knowledge  of  English  and  French  history 
to  perceive  that  in  the  determination  of  their  political 
affairs  the  forces  of  intelligence  and  of  instinct  have  not 
operated  in  the  same  ratio  in  the  two  nations.  The  po- 
litical conduct  of  the  French  nation  has  been  determined 
by  purely  intellectual  conceptions  to  a  much  greater  ex- 
tent than  that  of  the  English.  It  has  become  almost 
proverbial  that  in  effecting  political  changes  the  French 


INSTINCT  AS   A   FACTOR.  8 1 

follow  theories,  while  the  English  are  directed  by  their 
common  sense,  which  is  simply  another  way  of  stating 
the  dominance  of  intelligence  in  French  politics  as  con- 
trasted with  the  dominance  of  instinct  in  English  politics. 
The  French  revolutions  of  this  and  the  previous  century 
have  been  a  practical  outgrowth  of  French  political  phi- 
losophy, and  appear  as  attempts  to  carry  out  certain  con- 
ceptions of  political  organization  which  this  philosophy 
had  impressed  upon  the  mind  of  the  nation.  In  most 
English  revolutions,  on  the  contrary,  always  excepting  the 
Puritan  revolution,  the  dominant  factor  has  been  the  con- 
servative force  of  the  nation — political  instinct.  This  su- 
perior strength  of  instinct  in  the  English  furnishes  ground 
for  an  explanation  of  important  facts  in  the  social  history 
of  this  people,  such  as  :  i.  The  almost  unerring  wisdom 
with  which  any  colony  of  Anglo-Saxon  blood,  however 
unlettered  its  members,  proceeds  in  the  organization  of  a 
government ;  2.  The  wonderful  assimilative  power  in 
which  this  people  has  shown  a  superiority  over  all  others 
with  which  it  has  come  in  contact  in  its  course  of  world-  ^ 
wide  colonization. 

The  political  intelligence  of  our  race  may  vary,  but  the 
instinct  remains  stable.  The  intelligence  is  fickle,  and 
turns  with  every  breath  of  argument ;  the  instinct  is  beyond 
the  reach  of  argument,  and  bears  ever  steadily  towards  its 
predetermined  goal. 


CHAPTER   VIII. 

THE     POLITICAL     HERITAGE     OF     THE     BRITISH     COLONIES     IN 
AMERICA. 

THE  political  development  of  colonies  planted  in  new 
countries  is  through  forms  analogous  to  those  which  have 
marked  the  constitutional  growth  of  the  parent  stock,  and 
illustrates,  not  merely  the  influences  of  imitation,  but 
also  the  force  of  an  hereditary  political  sense  or  instinct. 
This  tendency  is  clearly  manifest  in  the  history  of  the 
movement  toward  national  unity  in  the  British  colonies 
of  America.  As  the  colonial  settlements  proceeded  from 
a  completed  nation,  so  they  manifested  an  irresistible 
tendency  toward  unification  in  the  form  of  a  fully  organ- 
ized nation.  The  town,  or  the  plantation,  or  the  parish 
as  the  successor  of  the  plantation,  which  became  the 
political  unit  in  the  colonies,  corresponded  to  their  pro- 
totype, the  parish,  the  political  unit  in  England. 

In  the  history  of  the  United  States  we  have  a  striking 
example  of  the  rapid  growth  of  a  nation  up  through  the 
rudimentary  stages  ;  and  we  have  here  more  clearly 
shown  than  in  other  instances  of  such  growth  the  work- 
ing of  the  centralizing  and  disrupting  tendencies  which 
have  been,  in  a  greater  or  less  degree,  the  accompani- 
ments of  all  natural  development  throughout  the  world. 
With  us  these  opposing  tendencies  were  especially  active 
during  the  period  of  seventy-seven  years,  between  1778, 
when  the  Articles  of  Confederation  were  framed,  and  the 
close  of  the  Civil  War  in  1865.  During  that  period,  espe- 
cially after  1800,  all  party  strife  hinged,  more  or  less,  on 


THE  POLITICAL  HERITAGE.  83 

this  antithesis.  Looking  further  back  we  can  see  that 
the  seeds  of  political  discord  were  planted  among  the 
colonists  almost  at  the  beginning. 

The  nationalizing  influences  are  to  be  found  in  the 
fact  that  the  colonists,  with  few  exceptions,  belonged  to 
a  common  stock,  and  proceeded  from  a  single  nation, 
taking  with  them  common  political  instincts  and  the 
traditions  of  common  institutions. 

The  settlement  of  Virginia  dates  from  1607.  Thirteen 
years  afterward,  in  December,  1620,  the  Pilgrims  landed 
from  the  Mayflower.  Within  three  years,  in  1623,  the 
Dutch  settled  in  New  York,  and  very  soon  spread  in 
small  numbers  into  the  present  territory  of  New  Jersey 
and  Delaware.  An  interval  of  thirteen  years  elapsed 
before  the  next  colony,  that  of  Lord  Baltimore,  in  1634, 
planted  itself  on  the  Atlantic  coast.  Shortly  afterward  a 
small  settlement  of  Swedes  was  made  within  the  limits  of 
Delaware.  Then  thirty-two  years  passed  by  before  South 
Carolina  was  colonized.  This  long  interval  was  followed 
by  another  of  twelve  years  before  Penn  brought  his 
Quaker  co-religionists  over  to  the  banks  of  the  Delaware  ; 
and  finally  it  was  as  late  as  1732  when  the  Oglethorpe 
colony  came  to  Georgia. 

Thus  there  were  seven  germs  of  European  civilization 
planted  at  intervals  along  the  Atlantic  seaboard  during 
this  period  of  one  hundred  and  twenty-five  years.  Six  of 
these  were  from  England,  and  one  from  Holland.  It  is 
hardly  worth  while  to  consider  the  Swedish  immigrants, 
as  their  distinctive  character  very  soon  disappeared. 
Even  the  Dutch  settlement  in  New  York  lost  its  special 
characteristics  after  its  capture  by  the  English  in  1664, 
and  counts  for  very  little  in  the  future  political  develop- 
ment. 

The  men  and  women  who  laid  the  foundations  of  the 


84  POLITICS. 

social  and  political  structure  on  this  continent  were 
mostly  of  the  Anglo-Norman  stock.  Their  language 
was  one,  their  customs  were  largely  similar,  and  their 
social  life  was  marked  by  the  same  general  peculiarities. 
Moreover,  their  ideas  of  present  and  future  happiness 
grew  from,  and  were  shaped  by,  their  common  circum- 
stances. 

The  fact  that  the  colonists  possessed  a  common  nation- 
ality is  an  important  consideration.  We  are  not  always 
ready  to  appreciate  the  profound  impression  which  a  fully 
developed  nationality  makes  upon  the  mental  and  moral 
structure  of  its  individual  citizens,  nor,  especially,  how 
much  it  consciously  and  unconsciously  shapes  all  their 
political  actions  and  ideals.  A  fully  developed  nation- 
ality brings  about  a  certain  sameness  in  these  particulars. 
There  grows  to  be  an  hereditary  habit  of  thought  and 
of  action  in  dealing  with  political  institutions.  There  is 
a  political  sense  which  can  be  cultivated,  and  becomes  a 
native  quality,  going  from  father  to  son.  Our  colonial 
history  and  the  annals  of  the  settlement  of  new  states  are 
replete  with  instances  of  rude,  unlettered  men,  possessed 
with  a  fine  political  sagacity,  laying  the  foundations  of 
new  communities.  State-making  aptness,  and  a  procliv- 
ity to  build  up  the  state  in  a  certain  way,  become  fixed 
in  a  whole  people,  so  that  it  is  just  as  much  an  hereditary 
necessity  for  them  to  construct  a  new  state  upon  certain 
transmitted  principles,  as  it  is  for  bees  to  build  their 
honeycombs  as  their  remote  ancestors  did.  It  is  true, 
the  state-making  faculty  is  common  to  all  the  Germanic 
peoples,  but  as  they  successively  developed  into  nations, 
each  has  taken  on  special  political  characteristics,  which 
fasten  themselves  on  any  new  communities  that  may 
spring  from  the  parent  stock.  If  the  parent  stock  is  fully 
developed  into  a  nation,  the  emigrants  who  go  out  from 


THE  POLITICAL  HERITAGE.  85 


it  as  colonists  have  a  strong  impulse  to  form  a 
nation  ;  they  are  taken  out  from  a  nation,  and  their  ten- 
dency is,  as  soon  as  they  can,  to  get  back  to  the  parent  . 
form.  New  communities  grow  in  the  likeness  of  the  an- 
cestral nation,  as  children  grow  in  the  likeness  of  their 
parents.  The  many  colonies  that  went  from  Greece  over 
to  the  coast  of  Asia  Minor,  rapidly  reached  the  city  form, 
which  was  the  limit  of  Greek  political  development,  but 
they  were  unable  to  enlarge  by  fusion  into  a  common 
nation,  though  a  favorable  geographical  position,  and 
more,  a  constantly  menacing  danger  of  conquest,  would 
almost  seem  to  have  compelled  it. 

Now,  when  the  English  began  to  colonize  America  in  the 
early  part  of  the  seventeenth  century,  the  mother  country 
had  been  a  nation  for  more  than  four  hundred  years.  Within 
a  century  and  a  half  after  the  landing  of  William  the  Con- 
queror in  1066,  at  the  close  of  the  reign  of  Henry  II.  and 
his  sons,  there  had  come  about  a  fusion  of  Norman  and 
Anglo-Saxon  blood,  and  with  it  a  developed  national 
feeling,  which  became  very  strong  during  the  succeeding 
four  centuries.  The  breaking  away  of  Henry  VIII.  from 
the  Roman  hierarchy  intensified  this  feeling,  because  he 
transferred  the  allegiance  of  the  strong  religious  feeling  of 
the  age  to  himself,  as  the  head  of  the  nation.  Before 
that,  there  was  a  double  sovereignty  in  England,  as  there  > 
is  in  every  country  where  the  Roman  Catholic  is  the  state 
religion  ;  a  religious  sovereign  outside  the  country,  and 

-\  a  civil  sovereign  within.  The  national  homogeneousness 
became  more  complete  during  the  long  reign  of  Eliza- 
beth, so  that,  when  James  came  to  the  throne,  English 
nationality  was  fully  developed.  The  Englishmen  of  that 
day  had  a  certain  stock  of  ideas  and  ideals  in  common. 

X  Their  religious  views  were  in  substance  the  same.  There 
was  a  common  agreement  upon  governmental  methods. 


86  POLITICS. 

They  accepted  without  question  a  government  in  which 
there  was  : 

1.  A  monarch. 

2.  A  legislative   body  consisting  of  an  Upper  House, 
representing,  or,  rather  consisting  of  the  aristocracy,  and 
a  Lower  House  representing  the  middle  class,  and  through 
them  the  lower  orders. 

3.  A  distinctive  judiciary. 

4.  Local    self-government    in    counties   and    parishes. 
Further,  they  were  agreed  upon  certain  general  principles, 
such  as  the  co-relation  of  taxation  and  representation, 
trial  by  jury,  etc.     The  king  represented  the  unity  of  the 
nation,   and  the  two  houses  of  parliament  its  common 
judgment.     The  English  nation,    then,    constituted   an 
organic  political  being.      It  might  have  been   expected, 
therefore,  that  those  colonies  which  were  sent  off  from  the 
parent  stock,  and  which  attached  themselves  to  the  soil 
and  grew,  would  have  an  inherent  tendency  to  develop 
into  like  national   organic   beings,   provided,  of  course, 
there  should  be  no   exterior  hindrances.     It  might  also 
have  been  expected  that  several  such  colonies,  planted 
near  one  another,  would  be  drawn  together  at  last  into  a 
single  nation. 

The  political  units,  or  the  primary  political  organiza- 
tions existing  in  the  English  nation  at  the  time  of  the 
establishment  of  these  colonies,  were,  as  we  have  already 
seen,  the  townships. 

In  Anglo-Saxon  times  the  tithing  was  the  rudimentary 
district.  Each  tithing  had  its  court,  which  was  an  assem- 
bly of  the  freemen  of  the  district.  These  ti things,  or  town- 
ships, were  subsequently  aggregated  into  the  hundreds, 
and  these  last  into  the  shires  or  counties.  These  three 
parts  were  not  well  defined  ;  the  boundaries  of  authority 
were  somewhat  confused.  In  the  tithings,  the  freemen 


THE   POLITICAL   HERITAGE.  8/ 

had  the  right  of  meeting,  and  exercised  some  sort  of  a 
jurisdiction  ;  they  seem  to  have  had  the  power  of  adopt- 
ing local  regulations,  or  by-laws,  and  also  of  electing 
their  own  officers.  The  assemblies  provided  for  the  rep- 
resentation of  their  interests  in  the  courts  of  the  hun- 
dred and  the  shire,  and  performed  certain  duties  im- 
posed upon  them  by  these  higher  courts  as  to  taxation 
and  other  matters.  When  we  reach  the  Norman  period, 
we  find  the  county  the  chief  district  of  the  kingdom, 
with  a  ruler  who  was  a  revocable  appointee  of  the  king. 
We  find  also,  the  hundred  courts  and  the  tithing  courts. 
Anglo-Saxon  institutions  continued  in  full  force,  and  in 
some  respects  became  more  sharply  defined.  The  changes 
were  in  the  upper  administrative  frame-work,  not  in  the 
lower,  which  remained,  with  reference  to  local  powers, 
very  much  as  before  the  conquest. 

After  the  time  of  Magna  Charta,  about  1377,  there  ap- 
pears a  house  of  commons,  with  a  speaker,  yet  the 
county,  hundred  and  township  administrations  were  but 
little  changed.  This  was  a  period  when  the  church  had 
become  a  great  power,  and  was  insinuating  itself  into  all 
the  branches  of  political  administration 

Now  appears  the  parish,  which  is  the  ecclesiastical 
form  of  the  old  township  and  tithing,  with  boundaries 
coincident  with  these.  For  nearly  five  hundred  years, 
the  parish,  which  is  the  old  township  transformed,  has 
been  the  constitutional  unit  of  England,  and  we  shall 
find  that  the  parish  is  also  the  constitutional  unit  of  the 
United  States,  though  in  some  of  the  colonies,  especially 
in  New  England,  re-transformed  into  the  township. 

The  first  care  of  the  old  English  parish  was  to  keep  the 
church  in  repair,  and  attend  to  its  ordinary  business  in- 
terests. It  required  money  or  labor  and  officers  to 
supervise  the  repairs  and  business.  Here,  then,  was  an 


88  POLITICS. 

occasion  furnished  for  the  exercise  of  two  very  important 
functions  of  local  self-government,  the  levying  of  taxes, 
and  the  election  of  officers.  To  do  these  things,  and  for 
the  discussion  of  parish  affairs,  there  were  assemblies  of 
all  the  householders  of  the  parish  at  stated  intervals.  The 
beginnings  of  the  representative  system  appear  here,  when, 
from  among  the  householders  the  vestry  was  chosen. 
These  assemblies  also  elected  wardens,  or  general  over- 
seers. Then  arose  a  system  of  parish  taxation  through  a 
committee  of  the  church,  in  part  voted  for,  and  in  part 
nominated  by  superior  authority.  The  notable  fact  in 
this  connection  is,  that  all  Christian  householders  as  such, 
without  distinction  as  to  freehold  or  copyhold,  or  long  or 
short  terms  of  land  tenure,  or  without  reference  to  prop- 
erty possession,  were  active  members  of  the  parish  assem- 
blies, and  had  a  voice  in  discussion,  and  could  vote. 
There  was  essential  democracy. 

In  the  course  of  time,  the  jurisdiction  of  the  parish  was 
enlarged,  so  as  to  include  the  making  and  repairing  of 
roads  and  bridges,  and  the  arresting  and  punishing  of 
vagrants.  In  very  early  days,  the  sheriff  of  the  county  had 
appointed  constables  in  the  townships.  Gradually  many 
of  the  duties  of  this  officer  were  transferred  to  the  church 
wardens.  At  first  the  clergymen  had  only  certain  disci- 
plinary powers  in  connection  with  the  church,  but  little  by 
little  these  were  extended  to  offences  like  drunkenness, 
infractions  of  weights  and  measures  in  retail  trade,  and 
certain  offences  against  the  game  laws.  They  became 
also  the  overseers  of  the  poor,  and  had  certain  police 
functions,  such  as  registering  servants'  certificates,  and 
ordering  the  whipping  of  vagabonds.  In  consequence  of 
the  great  increase  of  vagabondage,  a  poor-law  was  passed 
in  the  twenty-eighth  year  of  the  reign  of  Henry  VIII., 
which  was  afterwards  enlarged  into  the  elaborate  statute 


THE    POLITICAL   HERITAGE.  89 

of  43<i  Elizabeth,  which,  as  is  well  known,  is  the  basis  of 
the  present  extensive  poor-law  system  of  England. 

The  parish,  as  already  suggested,  became  also  the  terri- 
torial district  for  the  maintenance  of  roads.  In  the  reign 
of  Bloody  Mary,  the  office  of  road  overseer  was  created. 
For  the  purposes  of  tax  assessment  and  local  administra- 
tion, standing  committees  were  formed,  and,  as  was  the 
case  in  the  old  township,  the  parish  made  by-laws,  or 
local  regulations.  The  court  of  the  Justices  of  the  Peace 
became  the  parish  court. 

The  Tudors  extended  the  parishes  to  the  cities,  from 
which  arose  the  double  system  of  government  found  in 
England  to-day,  as,  for  instance,  in  London,  where  the 
"city"  proper  has  a  municipal  organization,  with  a 
Mayor  and  Board  of  Aldermen,  while  without  this  small 
central  area,  but  within  the  widely  extended  limits  of 
the  metropolis,  there  is  a  series  of  parishes,  which  have 
local  administrative  bodies. 

There  were  in  the  time  of  James  I.,  three  principal 
parish  taxes,  or,  as  they  are  called  in  England,  rates  : 

1.  The  church  rate,  which  was  granted  by  the  commu- 
nity assembly  for  the  maintenance  of  the  church  building, 
and  the  needs  of  the  church  service. 

2.  The  poor  rate,  levied  according  to  statute  of  Eliza- 
beth, by  the  church  wardens,  and  overseers  of  the  poor. 
At  this  time  two  church  wardens  were  appointed  by  the 
church  community  in  conjunction   with  the  clergyman, 
and  in  case  they  failed  to  agree  in  a  choice,  then  one  was 
appointed  by  each.     The  nomination  of  the  overseers  of 
the  poor  was  made  by  the  two  Justices  of  the  county,  who 
were  the  nominees  of  the  king,  so  that  the  direct  voice 
of  the  parish  householder  in  the  levying  of  this  tax,  was, 
it  is  true,  limited  to  the  choice  of  one  warden.     Neverthe- 
less, it  is  reasonable  to  suppose  that  the  discussions  of  the 


90  POLITICS. 

general  parish  assembly  must  have  indirectly  exercised  a 
powerful  influence  on  the  other  officers,  appointed  from 
rate  payers,  in  the  levying  of  these  taxes. 

3.  The  highway  rate,  which  was  also  levied  by  the 
church  wardens  and  overseers  of  the  poor  in  the  same  way 
as  the  poor  rate.  In  the  time  of  the  Tudors,  there  were 
other  local  taxes  levied  by  Justices  of  the  Peace,  for  re- 
pairs of  bridges,  for  the  building  of  county  prisons,  for 
the  transport  of  vagrants,  for  the  house  of  correction,  for 
jail  money,  and  for  the  support  of  poor  debtors.  In  the 
time  of  James  I.  there  were  larger  territorial  administra- 
tions of  a  local  nature  ;  there  were  aggregations  of  parishes 
and  boroughs  and  hundreds,  and  of  these  last  into 
counties.  Some  of  the  counties,  or  shires,  were  originally 
kingdoms,  as  Kent,  and  Sussex. 

The  unit  or  cell,  however,  upon  which  the  English 
system  is  built,  is  the  old  township,  and  its  successor,  the 
parish.  It  was  here  that  the  mass  of  the  people  were 
educated  in  local  self-government.  It  v/as  here  that  those 
affairs  of  a  governmental  nature  which  most  concerned 
their  daily  lives  were  considered  before  their  eyes,  and  in 
which  they  had  more  or  less  a  part.  Even  those  who 
were  not  householders,  and  had  no  direct  voice  in  the 
discussions  of  the  parish  assemblies,  could  learn,  more  or 
less,  of  the  methods  of  carrying  on  the  local  administra- 
tion ;  and  what  was  not  of  less  import  for  the  future, 
there  was  here,  practical,  political  equality. 

In  its  earlier  days,  the  house  of  commons  represented 
more  particularly  the  aristocracy ;  the  democracy  found 
its  expression  in  the  parishes. 

Through  the  force  of  the  political  instinct  and  the  power 
of  political  tradition,  small  colonies  sent  out  from  a  ripe 
nation,  such  as  England  had  already  become  in  the  early 
part  of  the  seventeenth  century,  will  naturally,  if  allowed 


THE   POLITICAL   HERITAGE.  QI 

freedom,  model  their  early  political  institutions  on  those 
prevailing  in  the  political  unit  of  the  mother  country. 

The  growth  of  new  political  communities  from  the  ma- 
terials of  an  old  one  may  be  likened  to  that  of  the  human 
being.  The  new  social  body  goes  successively  through 
all  the  earlier  stages  of  social  and  political  development,  in 
the  order  in  which  the  parent  has  been  evolved.  There  is 
the  family,  the  community  of  lands,  local  self-govern- 
ment, and,  finally,  the  growth  into  the  mature  nationality. 

This  growth,  however,  very  seldom  follows  the  normal 
order  ;  very  few  colonies  are  left  to  themselves  entirely. 
There  is  from  the  beginning  constant  interference  on 
the  part  of  the  parent  country,  as  happened  to  the  original 
charter  colonies  which  came  to  America  during  the  seven- 
teenth century.  They  were,  more  or  less,  hampered  at 
the  outset,  with  conditions  imposed  by  the  authorities  at 
home ;  but,  fortunately,  the  internal  dissensions  which 
arose  in  England  very  soon  left  them  largely  to  them- 
selves, and  we  find  them  all  falling  back  into  a  local 
system  based  upon  that  to  which  they  had  been  accus- 
tomed at  home. 

The  little  band  which  sailed  from  England  in  Decem- 
ber, 1606,  and  landed  on  the  i3th  of  May,  1607,  at  the 
point  in  Virginia  where  Jamestown  was  built,  consisted 
of  one  hundred  and  five  persons.  Of  the  first  company, 
the  greater  part  very  soon  died,  victims  of  the  hardships 
of  pioneer  life.  Within  a  little  time  after  the  sailing  of 
the  first  expedition,  a  second  started  with  one  hundred 
and  twenty  persons,  and  from  time  to  time  fresh  emi- 
grants were  sent  to  the  new  settlement  under  the  auspices 
of  the  Virginia  Company.  The  three  charters  to  this 
company  of  1606,  1609,  an<^  1611,  proceed  from  the 
royal  bounty  of  James  I.,  and  are  framed  upon  the 
theory  that  the  king  is  the  owner  of  the  fee  in  all  the 


92  POLITICS. 

lands  in  the  new  country,  and  that  whatever  of  political 
government  its  future  inhabitants  should  have,  would 
proceed  from  him. 

These  charters,  which  are  substantially  alike,  are  grants 
to  a  commercial  or  speculative  corporation,  composed  of 
noblemen,  knights,  and  also  of  fifty-six  companies,  or 
guilds,  of  traders  and  workmen.  There  was  to  be  a 
council  appointed  by  the  company,  which  was  to  remain 
in  England,  and  this  central  body  named  all  the  officers 
and  made  all  the  laws  for  the  settlers.  The  organizers  of 
the  enterprise  pretended  that  one  of  its  objects  was — as  an 
address  issued  by  them  says — "to  advance  the  kingdom 
of  God,  by  reducing  savage  people  from  their  blind  su- 
perstition to  the  light  of  religion  ; "  but  cupidity,  no  doubt, 
led  most  of  the  shareholders  to  invest  their  money.  They 
expected  great  gains  from  the  cultivation  of  the  new 
lands,  but  more  from  the  anticipated  discovery  of  mines 
of  gold  and  silver.  The  scheme  was  to  carry  on  the 
colony  as  a  joint  commercial  and  speculative  adventure 
for  a  certain  period,  during  which  time  it  was  to  be 
substantially  a  single  plantation  under  the  supervision  of 
the  home  company,  the  shareholders  of  which  were  to 
receive  and  divide  the  whole  product. 

The  charter  in  force  when  the  first  band  of  emigrants 
sailed,  provided  that  the  king  should  nominate  a  council 
of  thirteen  to  remain  in  England,  and  this  body  should 
appoint  a  sub-council  of  thirteen  to  reside  in  the  colony. 
Both  the  home  and  the  colonial  councils  should  govern 
according  to  such  laws  and  instructions  as  should  be 
given  by  the  king ;  and  it  was  further  provided  that  the 
lands  were  granted  to  the  settlers  in  free  tenure,  and 
should  be  inherited  and  held  as  like  estates  were  in 
England.  It  was  further  provided  that  jury  trial 
should  be  preserved.  The  monarch  was  very  careful 


THE   POLITICAL   HERITAGE.  93 

to  enact  that  all  trade  must  be  with  the  mother 
country,  and  that  all  goods  imported  into  the  colony 
must  be  stored  in  magazines  belonging  to  the  col- 
ony, and  thence  distributed  under  the  direction  of  its 
officers.  This  original  charter  was  modified  in  1609, 
and  again  in  1611.  The  king  gave  up  legislative  power 
over  the  colony,  transferring  it  to  the  council  of  the  cor- 
poration in  England,  which  was  authorized  to  choose  the 
governor,  and  in  fact  had  unlimited  control  over  the  in- 
habitants. The  grantees  in  the  charter  consisted  of  two 
classes  :  adventurers  and  planters.  Those  who  invested 
money  in  the  enterprise  but  did  not  go  in  person  were 
the  adventurers,  while  the  planters  were  those  whose 
names  were  mentioned  in  the  patent,  and  who  came  in 
person  to  settle.  A  single  share  was  twelve  pounds  ten 
shillings  sterling.  Every  ordinary  man  and  woman  who 
came  over  and  dwelt  in  the  colony  was  allowed  a  share. 
The  ingrained  belief  of  the  time  in  Masses  was  shown 
in  the  provision  made  for  what  were  called  "  extraordi- 
nary men  "  ;  that  is,  divines,  governors,  ministers  of  state,  ^f 
justices,  knights,  gentlemen,  physicians,  who  were  to  be 
maintained  at  the  common  expense,  and  to  receive  their 
dividends  at  the  end  of  seven  years. 

Everything  was  to  be  in  common  for  seven  years,  and 
all  products  were  to  be  returned  for  the  common  benefit, 
and  at  the  end  of  seven  years  there  was  to  be  a  division 
according  to  shares  made  by  commissioners  appointed  by 
the  king.  It  was  estimated  that  every  share  would  be 
equal  to  five  hundred  acres  of  land.  The  project  of  the 
colony  contemplated  three  distinct  ranks  of  persons.  The 
extraordinary  men,  the  planters,  and  the  ordinary  men. 
It  was  expected  that  the  latter  class  would  be  gathered 
from  the  dregs  of  society.  A  writer  of  the  time,  speaking 
of  the  early  emigrants  to  Virginia,  describes  them  as 


94  POLITICS. 

"  loose,  vagrant  people,  vicious  and  destitute  of  means  to 
live  at  home  ;  "  and  further  that  they  ' '  were  gathered  up 
about  the  streets  of  London,  and  transported  to  be  em- 
ployed upon  the  plantations."  Smith,  in  his  history  of 
Virginia,  published  in  1753,  finds  fault  with  "that  early 
custom  which  arose  of  transporting  loose  and  dissolute 
persons  to  Virginia,  as  a  place  of  punishment  and  dis- 
grace. " 

The  original  colonists  of  Virginia  were  not,  certainly, 
promising  materials  with  which  to  found  a  state.  A  very 
small  proportion  of  them  were  mechanics  or  laboring 
men ;  the  greater  part  were  impoverished  gentlemen, 
bankrupt  tradesmen,  and  dissolute  youths,  who  rapidly 
died  off.  Indolence  and  vice  had  reduced  the  number  in 
1610  to  only  sixty  persons,  who  were  upon  the  point  of 
abandoning  the  colony  when  relieved  by  the  arrival  of 
Lord  Delaware,  with  aid  and  recruits.  He  restored  a 
certain  degree  of  order  among  the  dispirited,  disorderly 
settlers.  After  his  arrival,  the  attempt  to  work  in  com- 
mon and  to  support  the  colonists  out  of  the  common 
stock  was  abandoned  as  impracticable.  Then,  for  the 
first  time,  individual  property  was  allowed  ;  to  each  man 
were  assigned  a  few  acres.  Nevertheless  the  colonists  con- 
tinued to  be  treated  as  servants  of  the  home  corporation. 
They  were  not  allowed  to  return  to  England  without 
passes,  and  even  their  letters  homeward  were  examined. 

This  second  stage  of  modified  servitude  continued  until 
the  arrival  of  Sir  George  Yeardley,  in  1619,  who  published 
a  proclamation  that  every  person  should  be  freed  from 
the  public  services  and  labors.  Then,  for  the  first  time, 
the  Virginia  colonists  began  to  act  under  free  conditions. 
The  attempt  to  make  laws  for  them  in  England  was  given 
up  and  they  assumed  that  function  themselves,  subject  to 
the  supervisory  power  of  the  directors  at  home  to  reject 


THE  POLITICAL  HERITAGE.  95 

the  laws  framed.  The  connection  of  the  colonists  with 
the  home  company,  however,  continued  only  a  few  years 
longer,  as  James  I.,  in  1624,  procured  a  vacation  of  the 
charter  in  the  courts,  and  from  that  time  the  relation  of 
the  colony  was  directly  to  the  king. 

A  comparatively  free  political  life  began  in  1619  upon 
the  arrival  of  Sir  George  Yeardley.  At  that  time  there 
were  not  above  six  to  seven  hundred  persons  in  the 
colony  who  were  distributed  among  eleven  different 
plantations. 

It  will  be  remembered  that  the  original  charter  provided 
for  a  class  of  colonists  known  as  planters  who  were  share- 
holders in  the  company  and  were  to  come  over  in 
person.  These  persons  distributed  themselves  at  vari- 
ous points  along  the  water  courses  in  the  neighborhood 
of  Jamestown,  and  thus  formed  points  of  settlement 
which  were  called  plantations.  These  little  settlements 
consisted  of  the  proprietor  and  his  immediate  family. 
Perhaps  a  few  small  landholders,  also,  who  were  either 
indented  servants,  who  had  served  their  time  and  were 
assigned  land,  or  those  who  wished  the  advantages  of 
protection  and  convenience  found  in  a  settlement.  The 
larger  part  of  the  people,  however,  at  a  plantation  were 
indented  white  servants,  who  had  no  voice  in  public  af- 
fairs. These  servants  consisted  of  those  who  came  out 
under  contracts  from  England,  for  terms  of  years,  or  of 
the  vagabond  class  transported  for  petty  crimes  and  sold 
to  planters  for  a  certain  number  of  years.  At  the  sup- 
pression of  Monmouth's  rebellion  in  1685,  a  large  num- 
ber of  his  followers,  small  farmers  and  farm  laborers,  were 
sold  into  servitude  in  Virginia  and  the  Barbadoes  for  terms 
of  ten  years. 

One  is  struck  in  looking  over  the  colonial  legislation  of 
Virginia  and  the  other  Southern  States,  with  the  large 


96  POLITICS. 

portion  of  it  devoted  in  the  earlier  days  to  the  relations  of 
masters  and  indented  servants,  and  later,  of  master  and 
slave.  From  the  first,  a  comparatively  small  number 
possessed  the  power  and  wealth  of  the  country,  and  class 
lines  were  distinctly  marked. 

The  year  after  Sir  George  Yeardley's  arrival,  over  twelve 
hundred  persons,  mostly  indented  white  servants,  came 
to  the  colony.  Only  freemen  could  vote,  but  as  the  white 
servants  acquired  their  freedom,  they  were  incorporated 
among  the  free  citizens,  and  if  they  became  householders 
or  freeholders  had  a  voice  in  public  business. 

The  tendency  of  the  population  of  Virginia,  from  the 
first,  was  to  disperse  into  small  communities,  and  even  into 
single  plantations  more  or  less  remote  from  one  another. 
These  plantations  were  the  seats  of  single  families, 
each,  at  the  outset,  with  its  complement  of  white  ser- 
vants, and  later,  of  negro  slaves.  By  an  ordinance  of  the 
home  company,  which  was  continued  in  force  by  the 
king,  every  person  removing  to  Virginia  to  settle  was  en- 
titled to  fifty  acres  of  land.  A  husband  received  besides, 
fifty  acres  apiece  for  his  wife,  for  each  child,  and  for  each 
person  in  addition  brought  to  the  colony  at  his  own  cost. 
The  rights  thus  established  were  assignable,  and  patents 
were  issued  after  survey.  There  was  thus  a  constant  in- 
ducement for  settlers  to  bring  as  many  servants  with  them 
as  possible.  The  cultivation  of  tobacco  was  almost  the 
sole  industry  from  the  outset,  and  this  constantly  de- 
manded fresh  land. 

An  estimate  of  the  size  of  the  farms  at  this  early  day 
may  be  gathered  from  the  schedule  of  grants  made  in 
1626,  numbering  one  hundred  and  eighty-three.  One 
was  for  2,200  acres,  one  for  1,700,  one  for  1,300,  one  for 
1,150,  and  two  for  1,000  acres  each.  Of  the  remainder, 
one  was  for  650,  and  two  for  600  acres  ;  the  greater  num- 


THE   POLITICAL  HERITAGE.  9? 

ber,  however,  were  of  the  average  size  of  200  acres.  These 
land  grants  were  scattered  at  first  along  the  York  River, 
and  afterwards,  along  the  James,  and  their  tributaries  ; 
and  for  the  purposes  of  protection,  the  early  settlers  held 
together  in  close  neighborhood.  But  the  village  formation 
was  unknown  at  the  beginning  ;  the  only  pursuit,  tobacco 
culture,  forbade  it.  After  1611  the  settlers  were  allowed 
separate  ownership  of  land,  and  then  they,  in  great  part, 
broke  loose  from  the  leading  strings  of  the  home  com- 
pany. Whatever  of  government  there  was,  was  based 
upon  the  local  institutions  of  the  mother  country.  When 
Sir  George  Yeardley,  in  the  summer  of  1619,  concluded 
to  convene  a  general  assembly,  he  sent  a  summons  to 
his  council,  and  as  the  early  record  states,  "also  for  the 
election  of  burgesses."  The  summons  was  sent  to  eleven 
plantations,  from  each  of  which  two  delegates  appeared. 
This  assembly,  the  first  legislative  body  that  convened  on 
this  continent,  was  in  session  at  Jamestown,  only  five 
days,  "  being  constrained,"  as  the  record  concludes,  "by 
the  intemperature  of  the  weather,  and  the  falling  sick  of 
diverse  of  the  burgesses,  to  break  up  so  abruptly." 

It  was  convened  in  pursuance  of  the  charter,  and  con- 
fined its  business,  first  to  drawing  up  a  petition  to  the 
council  of  the  company  in  England,  praying  the  enact- 
ment of  certain  regulations  desired  by  the  people,  and 
secondly,  to  passing  upon  such  laws  as  had  already  been 
adopted  by  the  council.  They  were  all  of  a  very  simple 
nature.  It  is  evident  that  the  colony  had  already  been, 
in  some  way  marked  off. into  political  districts,  because, 
in  order  to  c  >nvert  the  Indians,  it  was  enacted  that  "each 
town,  city,  burrough,  and  particular  plantation,  should 
educate  a  certain  number  of  Indian  children."  This  first 
legislative  body  established  two  or  three  very  important 
points  in  Virginia.  It  initiated  the  election  of  the  local 
5 


98  POLITICS. 

legislature  by  the  general  suffrage  of  all  the  property 
holders  ;  it  introduced  representative  government  at  a  time 
when  it  was  about  to  enter  upon  a  deadly  struggle  for  its 
existence  in  England,  and  it  gave  the  right  to  individual 
members  to  initiate  laws,  a  right  which  is  the  great  lever, 
when  controlled  by  the  representative  of  the  people,  in 
lifting  their  political  power  to  the  highest  point. 

It  appears  that  in  1620,  a  certain  quantity  of  public 
land  was  set  apart  in  each  borough  for  the  clergymen, 
and  as  early  as  1623-4,  parishes  were  in  existence  ;  for. 
it  is  provided  that  there  shall  be  in  every  parish,  a  public 
granary,  to  which  shall  be  contributed  corn,  equal  to  one 
bushel  for  each  planter,  to  be  disposed  of  for  the  public 
use  of  the  parish,  "by  the  major  part  of  the  freemen." 
It  was  further  provided  that  three  suitable  men  in  each 
parish  should  be  sworn  to  see  that  every  man  planted 
and  tended  sufficient  corn  for  his  family,  whose  duty  it 
was  to  present  for  censure  to  the  governor  and  council, 
those  who  neglected  to  do  so.  The  evident  object  of  this 
regulation  was  to  avoid  the  danger  of  famine,  arising  out 
of  an  exclusive  cultivation  of  tobacco.  The  church  war- 
dens were  directed  to  present  to  commanders  of  planta- 
j  tions,  for  punishment,  all  persons  guilty  of  swearing  or 
drunkenness.  The  commanders  of  plantations  had  more 
of  a  civil  than  military  character.  About  1628-9  com- 
missioners were  appointed  to  hold  monthly  courts  in  some 
of  the  more  remote  plantations  for  the  trial  of  small  cases. 
The  proceedings  of  the  legislative  assembly  of  1619  show 
that  the  House  of  Burgesses  also,  acted  as  a  general  court 
for  the  colony.  In  addition,  the  governor  and  council 
had  judicial  powers.  In  1631,  an  order  was  enacted, 
that  the  clergyman,  and  at  least  one  church  warden  of 
every  parish,  were  to  present  to  the  midsummer  quarter 
court,  yearly,  a  register  of  christenings,  marriages  and 


THE  POLITICAL  HERITAGE.  99 

burials,  together  with  an  account  of  all  disbursements  in 
church  affairs  ;  and  clergymen  were  directed  to  keep  a 
parish  register.  The  clergymen  were  to  receive  tithes  in 
tobacco,  corn,  and  domestic  animals.  In  the  assembly  of 
1632  there  were  six  burgesses  returned  from  the  upper 
and  lower  parishes  of  Elizabeth  City ;  three  from  each, 
showing  that  at  that  early  day,  these  districts  had  a  politi- 
cal as  well  as  religious  character.  There  was  likewise 
a  relation  between  the  church  wardens  and  the  monthly 
courts,  as  the  former  were  obliged  at  stated  intervals  to 
present  to  the  latter  the  names  of  offenders  violating  the 
regulations  which  the  wardens  specially  supervised.  In 
the  assembly  of  1642-3,  there  was  a  sort  of  codification  of 
all  the  old  laws.  These  indicate  that  each  parish  had  a 
vestry  with  power  to  make  assessments  and  levies  for  re- 
pairing the  church,  and  for  other  needs  of  the  sacred 
society ;  that  two  or  more  wardens  should  be  chosen, 
who,  with  other  selectmen  chosen,  should  form  the  ves- 
try. It  was  provided  that  the  commanders,  who  were  the 
military  chiefs,  and  the  commissioners  or  judges  of  the 
county  courts,  which,  in  1642,  were  the  substitutes  for 
the  monthly  courts,  should  constitute  a  board  of  visita- 
tion in  parish  affairs. 

The  democratizing  tendency  was  early  shown  by  the 
law,  according  to  which  the  appointment  of  the  clergy- 
man was  given  to  the  vestry  with  the  approval  of  the  com- 
mander and  of  the  judges  of  the  county  court,  if  they 
resided  within  the  parish,  or  with  the  approval  of  the 
commander  alone,  if  the  judges  were  non-residents. 

In  1 634,  the  colony  was  divided  into  counties,  which  gen- 
erally coincided  with  the  parishes,  though  afterwards,  they 
were,  from  time  to  time,  divided  into  two  or  more  parishes. 

It  appears  that  at  the  beginning,  the  little  settlements 
known  as  plantations  were  without  boundaries  for  politi- 


100  POLITICS. 

cal  purposes.  They  were  centres  of  organization  in  the 
Church  of  England,  so  that  they  were  political  and  eccle- 
siastical units.  The  representatives  to  earlier  assemblies, 
came,  as  we  have  seen,  sometimes  from  the  plantations, 
and  sometimes  from  the  parishes.  The  two  were  more  or 
less  confused. 

As  new  counties  were  created,  they  were  divided  into 
parishes  by  the  assembly,  and  even  as  early  as  1655-7, 
county  courts  were  permitted  to  carve  out  parishes  in 
counties. 

The  fundamental  political  conditions  of  Virginia  were 
fixed  between  1607  and  its  division  into  counties  in  1634. 
As  already  stated,  the  population  in  1619,  when  the  first 
legislature  met,  was  less  than  one  thousand.  Immigra- 
tion then  began  to  increase  rapidly.  In  1622,  the  popula- 
tion of  Virginia  was  twenty-five  hundred,  and  in  1634, 
several  thousands.  During  the  progress  of  the  civil  war, 
and  while  the  Puritan  party  was  dominant  in  the  mother 
country,  between  1642  and  1660,  there  were  large  acces- 
sions of  Royalists,  and  it  appears  that  in  1648,  there  were 
fifteen  thousand  whites  and  three  hundred  imported 
negroes.  Large  numbers  of  the  whites  were  indented 
servants,  bound  for  various  terms  of  years,  but  in  course 
of  time,  these  emerged  into  a  condition  of  freedom,  and 
many  became  landowners  and  voters. 

We  thus  see  that  the  unit  of  political  organization  was 
the  plantation,  which  was  the  form  assumed  by  the  old 
Saxon  township,  and  its  successor,  the  parish,  under  the 
new  conditions  of  emigrant  life.  The  plantation  was  the 
township  and  parish  rolled  into  one.  From  this  point 
grew  the  county  governments  and  parish  administrations, 
and  the  plantation  formed  the  initial  elective  district  or 
borough,  from  which  representatives  were  sent  up  to  the 
little  Parliament,  the  Houses  of  Burgesses. 


THE   POLITICAL   HERITAGE.  IOI 

Let  us  now  turn  and  examine  the  political  germs 
planted  by  the  next  band  of  Englishmen  who  broke 
away  from  the  parent  nation.  The  Puritans  who  fled  to 
New  England  had,  also,  the  hereditary  political  aptitudes, 
the  acquired  nature  of  the  body  of  the  nation  from  which 
they  sprung  ;  they  were  imbued  with  the  same  political 
ideas  as  their  countrymen  who  had  crossed  the  ocean  to 
Virginia,  thirteen  years  before.  In  looking  into  the 
history  of  political  institutions  in  New  England,  one  is 
struck  with  the  similarity  in  their  fundamental  ideas  ; 
their  substantial  likeness  in  form,  and  development  with 
those  of  the  more  southern  colony. 

The  Puritans  became  voluntary  exiles,  in  order  to 
escape  ecclesiastical  tyranny  at  home  ;  they  were  ani- 
mated solely  by  ardor  for  religious  independence.  Polit- 
ical aims  were  secondary,  and  an  after-thought.  They 
had  no  governmental  theories  to  carry  out,  and  so  it  is 
not  strange  that  when  they  found  themselves  alone,  a 
little  band  of  enthusiasts  on  the  borders  of  a  vast  wil- 
derness, dependent  upon  themselves,  they  spontaneously 
fell  into  those  ways  of  securing  civil  order  which  had 
become  part  of  their  mental  constitution. 

The  first  emigrant  body  was  a  Church  congregation, 
which,  in  consequence  of  the  persecutions  set  on  foot  by 
Archbishop  Bancroft,  escaped  from  England,  and  settled 
at  Amsterdam,  under  the  leadership  of  John  Robinson, 
and  William  Brewster.  Here  they  found  two  English 
congregations  of  non-conformists  already  settled  ;  one 
from  London,  the  other  from  Gainsborough.  It  turned 
out  that  these  three  societies  could  not  live  together  in 
harmony,  and  in  consequence  the  body  under  Robinson 
and  Brewster  removed  to  Leyden,  and  after  twelve  years 
residence  there,  a  large  portion  of  it  determined  to  go  to 
America.  They  arranged  with  the  Virginia  company  to 


102  POLITICS. 

occupy  a  portion  of  the  lands  granted  to  it  by  the  king, 
and  formed  themselves,  with  some  people  in  London, 
into  a  joint  stock  company ;  the  latter  sharing  the  ex- 
penses of  the  voyage,  expecting  in  return  a  share  of  the 
anticipated  profits  of  the  adventure.  This  partnership 
was  to  continue  seven  years  ;  all  profits  obtained  from 
traffic,  work,  fishing  or  other  means,  were  to  remain  in 
common ;  the  colonists  were  to  be  divided  into  parties 
for  various  kinds  of  work  ;  at  the  end  of  seven  years, 
the  capital  and  profits  were  to  be  divided  among  the 
stockholders,  and  until  the  division,  all  the  colonists  were 
to  be  provided  with  food,  clothing,  and  other  necessaries, 
from  the  common  stock. 

In  these  respects  the  Plymouth  colony  was  like  that  in 
Virginia,  a  commercial  adventure.  There  was,  however, 
one  essential  and  important  difference  ;  the  Pilgrims  did 
not  have  a  charter  directly  from  the  king.  They  ex- 
pected to  settle  within  the  charter  limits  of  Virginia.  It 
so  happened  that  their  settlement  was  made  without  those 
limits,  and  consequently  they  escaped  the  annoying  con- 
trol of  a  home  corporation. 

The  written  covenant  entered  into  by  the  voyagers  of 
the  Mayflower,  when  they  came  to  anchor  in  the  road- 
stead near  the  site  of  Plymouth,  is  often  referred  to  as  a 
remarkable  exhibition  of  capacity  for  self-government. 
It  may  not  be  out  of  place  to  transcribe  the  document. 

"In  the  name  of  God,  amen;  we,  whose  names  are 
underwritten,  the  loyal  subjects  of  our  dread  sovereign  King 
James,  having  undertaken,  for  the  glory  of  God,  and 
advancement  of  the  Christian  faith,  and  honor  of  our 
king  and  country,  a  voyage  to  plant  the  first  colony  in  the 
northern  parts  of  Virginia,  do,  by  these  presents,  solemnly 
and  mutually,  in  the  presence  of  God  and  one  of  another, 
covenant  and  combine  ourselves  together  into  a  civil 


THE   POLITICAL   HERITAGE.  IO3 

body  politic,  for  our  better  ordering  and  preservation  and 
furtherance  of  the  ends  aforesaid  ;  and,  by  virtue  thereof, 
to  enact,  constitute,  and  frame  such  just  and  equal  laws, 
ordinances,  acts,  constitutions,  and  offices,  from  time  to 
time,  as  shall  be  thought  most  convenient  for  the  gen- 
eral good  of  the  colony.  Unto  which  we  promise  all  due 
submission  and  obedience/' 

All  the  men,  forty-one  in  number,  signed  this  agree- 
ment. Bancroft  in  his  history  of  the  United  States  speaks 
of  it  as  "  the  birth  of  popular  constitutional  liberty. "  But 
this  is  exaggerating  its  significance.  When  we  consider 
the  circumstances,  it  can  justly  be  regarded  as  merely 
such  a  precaution  as  might  be  expected  from  earnest  men. 
It  illustrates  clearly,  moreover,  how  men  instinctively,  as 
it  were,  when  called  upon  to  provide  for  civil  order,  fall 
back  upon  the  common  basis  of  physical  force.  The  tie, 
which  up  to  this  time  had  held  the  body  together,  was 
merely  the  voluntary  one  of  a  self-constituted  church,  the 
allegiance  due  to  common  deeply  cherished  religious  be- 
liefs ;  and  the  submission  of  its  members  in  the  interior 
conduct  of  the  church  affairs  to  the  ecclesiastical  officers 
chosen  from  themselves  was  merely  moral  and  spiritual. 
As  long  as  they  remained  on  the  Mayflower  they  were 
theoretically  on  the  soil  of  England  ;  in  fact,  within  its 
jurisdiction,  and  the  ship's  captain  represented  the  national 
force.  At  first  it  was  intended  to  settle  within  the  limits 
of  the  Virginia  Company.  When,  therefore,  it  was  re- 
solved to  land  at  a  point  outside  of  the  old  colony,  en- 
tirely new  considerations  presented  themselves.  The 
question  was,  how  shall  the  civil  relations  of  the  colonists 
to  each  other  be  maintained,  how  shall  civil  order  be 
enforced  ?  Until  this  moment  the  society  had  been  a 
voluntary  collection  of  co-religionists  ;  it  was  now  impera- 
tively necessary  to  construct  the  form  of  the  state.  Hence, 


104  POLITICS. 

nothing  more  natural  than  that  they  should  "covenant 
and  combine  themselves  together  into  a  civil  body  politic." 
The  only  noticeable  peculiarity  in  their  procedure  is,  that 
they  should  in  advance  have  written  out  the  obligation 
which  later  they  would  have  been  compelled  for  self-pres- 
ervation to  act  out.  The  members  of  the  little  church, 
which  was  about  to  establish  itself  on  the  shores  of  the 
new  world,  were,  probably,  as  powerfully  and  constantly 
•influenced  in  their  daily  conduct  by  intense  conviction  as 
those  of  any  religious  body  had  ever  been  ;  their  religious 
and  moral  code  was  most  clearly  defined,  but  the  penal- 
ties for  transgression  acted  upon  the  mind  and  conscience 
alone.  However  effectual  those  penalties  had  therefore 
been,  it  became  instantly  apparent  to  the  Pilgrims  when 
placed  face  to  face  with  the  startling  fact  that  they  were 
now  without  the  pale  of  civil  society,  that  they  must  use 
the  means  which  men  in  all  ages  have  used  to  maintain 
civil  order.  Perhaps  comment  upon  this  elementary  fact 
would  be  unnecessary,  were  there  not  a  constant  tendency 
to  confuse  the  general  or  even  particular  motives  which 
actuate  men  with  their  methods  of  accomplishing  their 
ends  through  the  agency  of  the  state. 

Now,  the  motives  which  carried  the  Pilgrims  to  New 
England  were  of  a  much  higher  order  than  those  which 
influenced  the  adventurers  who  hoped  to  better  their  for- 
tunes in  Virginia;  but  all  alike,  when  they  set  about 
building  up  a  state,  started  from  the  same  political  unit, 
worked  in  the  same  general  way,  and  all  advanced  towards 
the  common  end  of  reconstructing  a  nation. 

The  Plymouth  Colony  was  a  trading  partnership  as 
well  as  a  church  congregation.  Whatever  of  government 
there  was,  was  exercised  by  one  of  its  members,  aided  by 
another  called  an  assistant.  Both  were  chosen  by  a  ma- 
jority of  voices.  The  colony  grew  but  slowly.  At  the 


THE   POLITICAL   HERITAGE.  IO$ 

end  of  four  years  there  were  only  one  hundred  and  eighty 
persons,  with  a  village  of  thirty-two  cabins.  It  maintained 
its  separate  existence  for  seventy  years,  at  the  end  of  which 
time  it  is  estimated  to  have  contained  not  above  eight 
thousand  persons.  The  land  was  treated  as  partnership 
property,  and  was  distributed  proportionately  to  the  con- 
tributions made  by  the  several  members  to  the  payment 
of  the  debt  which  had  been  incurred  in  sending  out  the 
colony.  At  the  end  of  the  seven  years  the  partnership 
with  the  English  company  was  dissolved,  and  the  debt 
due  the  latter  was  assumed  by  some  of  the  prominent 
men  among  the  colonists.  A  new  partnership  was  then 
formed  among  the  latter,  in  which  every  freeman  had  a 
share.  A  division  of  the  stock  and  land  then  took  place. 
The  colonists  were  now  in  an  emancipated  condition 
similar  to  that  of  the  Virginia  settlers  when  they  gave  up 
working  in  common,  except  that  they  had  not,  as  already 
remarked,  a  charter  from  the  king. 

In  sixteen  years  the  population  materially  increased, 
and  little  settlements,  offshoots  fn  m  the  parent  stem, 
were  planted  in  the  immediate  neighborhood.  During 
this  period  the  few  necessary  laws  had  been  adopted  in 
mass  meeting  by  a  majority  of  voices  of  the  freeman.  In 
1636,  a  committee  of  eight  from  three  of  the  towns, 
Plymouth,  Scituate,  and  Duxbury,  was  appointed  to 
codify  the  laws,  and  upon  its  report  the  form  of  govern- 
ment was  somewhat  modified.  There  were  to  be  a  gov- 
ernor, seven  assistants,  a  treasurer,  a  coroner,  a  clerk,  a 
constable,  and  other  inferior  officers  annually  elected.  It 
was  further  provided  that  the  town  of  Plymouth  could 
elect  four,  and  the  other  towns  two  deputies  each  to  the 
general  court,  with  power  to  make  laws.  At  the  same 
time  the  power  of  legislating  was  preserved  to  the  whole 
body  of  freemen  when  assembled.  In  1664  there  were 
5* 


106  POLITICS. 

seven  towns  besides  Plymouth,  which  then  received  the 
title  to  their  common  lands.  The  governor  and  any  two 
of  his  assistants  had  a  power,  remarkable  in  a  democratic 
community,  of  expelling  any  person  from  the  colony 
whom  they  did  not  like. 

The  desire  for  religious  freedom,  was,  no  doubt,  the 
principal  motive  influencing  the  Puritan  Church  at  Leyden 
to  remove  to  America,  but  it  is  also  evident  that  the 
longing  to  become  again  a  part  of  the  British  nation  was 
also  a  strong  impulse,  acting  upon  men  who  felt  them- 
selves out  of  place  in  a  strange  land,  and  who  feared  that 
their  descendants  would  be  absorbed  into  a  foreign  nation. 

Nine  years  after  the  settlement  at  Plymouth,  a  new 
project  of  Puritan  colonization  ripened  into  the  corpora- 
tion known  as  the  Governor  and  Company  of  the  Mas- 
sachusetts Bay  in  New  England.  It  received  a  charter 
from  Charles  I.,  which  continued  in  force  fifty-five  years. 
This  charter  authorized  the  freemen  of  the  corporation 
to  elect  annually  from  their  own  number  a  governor, 
deputy  governor,  and  eighteen  assistants ;  and  also  to 
make  laws  and  ordinances  not  repugnant  to  the  laws  of 
England.  It  was  a  charter  intended,  more  especially, 
for  the  government  of  the  corporation  in  England. 

A  little  while  after  the  grant  to  the  company,  a  very 
important  step  was  determined  upon  by  its  members. 
This  was  the  transfer  and  settlement  of  the  corporation  in 
New  England.  It  was  a  means  of  preserving  the  new 
community  from  undue  interference  from  the  crown, 
until  many  years  after  the  restoration  of  Charles  II.,  and 
thus  allowed  time  for  local  self-government  to  become 
firmly  established.  In  the  summer  of  1630,  a  company 
of  about  one  thousand  persons,  under  the  leadership  of 
that  noble,  if  somewhat  narrow  man,  John  Winthrop, 


THE   POLITICAL  HERITAGE. 

came  over  and  laid  the  foundations  of  the  colony  of  Mas- 
sachusetts. The  design  of  its  projectors  in  England  was, 
to  furnish  a  place  of  refuge  for  persecuted  non -conformists, 
where  they  could  worship  as  their  consciences  dictated. 
All  Englishmen  could  become  members  of  the  Massachu- 
setts Company,  but  no  one  could  vote,  or  take  a  share  in 
the  government  of  the  colony,  or  the  election  of  governor, 
until  he  had  been  elected  a  freeman  by  those  already  free  • 
men.  The  congregational  system  of  church  government 
was  adopted  before  the  emigrants  left  England,  and  when 
they  were  fairly  seated  in  their  new  home  it  was  ordered 
at  the  first  general  court  in  1631,  that  no  man  should  be 
eligible  to  be  a  freeman  unless  he  was  a  member  of  some 
one  of  the  churches  within  its  limits.  No  churches  were 
permitted  to  be  established,  unless  in  harmony  with  the 
parent  church,  and  as  a  great  number  of  persons  settled 
in  the  colony  who  were  not  members  of  the  church,  the 
result  was  that  the  voting  power  was,  in  not  a  very  long 
time,  in  the  hands  of  a  minority.  In  1634,  four  years 
after  the  arrival  of  the  colony,  it  was  estimated  that  there 
were  between  three  and  four  thousand  English  persons  in 
the  several  settlements,  but  the  freemen,  the  voters,  num- 
bered only  three  hundred  and  fifty.  In  the  first  year  a 
change  was  made  in  the  distribution  of  power,  by  the 
delegation  of  important  attributes  to  the  assistants. 
These  were  to  be  in  the  future  the  only  officers  chosen  by 
the  company  at  large  and  they  were  empowered  to  elect 
the  governor  and  deputy  governor.  The  making  of  laws 
and  appointing  officers  to  execute  them  was  entrusted  to 
the  assistants,  and  their  appointees,  the  governor  and 
deputy.  This  created  a  sort  of  oligarchy,  which  con- 
tinued but  a  short  time,  as  in  1632,  its  power  was  cur- 
tailed somewhat,  by  the  direct  election  of  the  governor  and 
deputy  by  the  freemen,  though  from  among  the  assistants. 


108  POLITICS. 

The  new  immigration  had  distributed  itself  into  eight 
"plantations."  At  first  it  was  the  practice  for  all  the 
freemen  of  these  neighboring  little  settlements  to  go  up 
to  Boston,  to  hold  the  general  court,  twice  in  the  year. 
At  the  outset,  the  assembled  freemen  must  have  been 
merely  an  approving  or  listening  body,  a  sort  of  con- 
ference for  discussion.  The  substantial  power,  however, 
of  proposing,  or  at  least  of  passing  laws,  was  in  the 
governor,  deputy  governor,  and  assistants.  At  this  early 
day  the  assistants  had  exercised  the  power  of  levying 
taxes,  though  even  then  it  was  opposed  and  was  finally 
abandoned. 

In  1632  the  germ  of  a  lower  house  in  legislation  made 
its  appearance  in  consequence  of  an  order  of  the  general 
court  that  each  plantation  should  choose  two  persons  to 
confer  with  the  court  about  raising  "a  public  stock,"  that 
is,  taxes.  Two  years  afterwards,  the  number  of  settlements 
or  plantations  had  increased  to  sixteen,  containing  three  to 
four  thousand  inhabitants.  The  most  distant,  Ipswich,  was 
thirty  miles,  and  it  was  unsafe  and  inconvenient  for  all 
the  freemen  to  leave  at  one  time  in  order  to  go  to  the 
general  court,  so,  naturally,  the  system  of  representation 
was  adopted,  and  each  plantation  sent  two  delegates  to 
the  court.  At  this  time,  also,  the  oligarchical  cast  of  the 
government  was  modified.  Winthrop  told  the  deputies 
that  the  supposition  had  been  when  the  patent  was 
granted,  that  the  number  of  freemen  would  be  limited  so 
as  not  to  be  too  great  to  be  conveniently  assembled  for 
the  transaction  of  public  business,  but  as  the  numbers  had 
greatly  increased  they  could  now  better  act  through  repre- 
sentatives; but  he  added,  "  for  the  present  they  were  not 
furnished  with  a  sufficient  number  of  men  qualified  for 
such  a  business  ;  neither  could  the  commonwealth  bear 
the  loss  of  time  of  so  many  as  must  attend  it."  He  would, 


THE   POLITICAL   HERITAGE.  ICX) 

therefore,  only  consent  to  the  appointment  of  a  commit- 
tee each  year  to  revise  the  laws  but  not  to  make  any  new 
ones,  reserving. however  to  the  representative  body  a  de- 
cisive voice  in  levying  taxes.  The  democratic  spirit  of 
the  people  rebelled  against  this  assumption  of  power,  and 
Winthrop  was  not  re-elected  governor,  and  the  freemen 
proceeded  to  affirm  by  a  resolve  of  the  general  court  that 
that  was  the  only  body  which  had  power  to  choose  and 
admit  freemen,  to  make  ^aws,  to  elect  officers,  to  raise 
money  by  taxation,  and  to  dispose  of  lands.  They  went 
further  and  abridged  the  judicial  power  of  the  assistants, 
ordering  that  capital  cases,  and  those  involving  banish- 
ment should  only  be  tried  before  a  jury  ordered  by  the 
freemen  of  the  plantations.  It  was  now  directed  that 
there  should  be  four  general  courts  in  the  year.  This 
revolution  in  affairs  introduced  a  government  representing 
the  freemen,  and  lodged  the  law-making  power  in  a 
representative  legislature. 

During  the  next  fifty  years,  and  until  the  abrogation  of  the 
charter,  the  administration  remained  substantially  the  same. 
The  magistrates,  that  is  the  governor,  deputy  governor, 
and  assistants,  were  chosen  by  a  joint  vote  of  the  freemen. 
The  settlements,  which  were  originally  known  as  planta- 
tions, but  which  about  1632-4  began  to  be  known  as 
towns,  elected,  through  their  freemen,  deputies  or  repre- 
sentatives to  the  general  court,  which  held  two  annual 
sessions  instead  of  four. 

The  legislative  body  or  general  court,  consisted  of 
the  governor,  deputy  governor,  and  assistants,  in  con- 
junction with  the  representatives  of  the  towns.  Dur- 
ing this  half  century  the  legislature  was  divided  into  two 
bodies,  sitting  apart,  and  each  having  a  negative  on  the 
other.  The  upper  house  consisted  of  the  governor, 
deputy  governor,  and  assistants  ;  the  lower,  of  the  re- 


IIO  POLITICS. 

presentatives  of  the  towns.  At  first  the  ousiness  of  the 
towns  was  transacted  at  meetings  of  its  freemen,  but  very 
soon,  within  three  or  four  years,  a  custom  arose  of  desig- 
nating a  committee  to  supervise  affairs  during  the  intervals 
between  these  general  meetings,  whose  members  were 
finally  known  as  selectmen.  The  custom  was,  to  con- 
tinue these  in  office  only  one  year.  It  is  worthy  of  note 
that  as  early  as  1634  election  by  ballot  came  into  vogue. 

The  judicial  system  was,  at  the  same  time,  made  more 
perfect.  The  general  court  was  still  the  highest  tribu- 
nal, but  to  facilitate  business  quarterly  courts  were  estab- 
lished to  be  held  four  times  a  year  in  Boston  and  in 
three  other  towns. 

At  the  outset,  as  is  always  the  case  in  communities  in 
process  of  formation,  powers  were  confused,  but  by  de- 
grees these  were  separated  and  defined.  Especially  was 
this  the  case  as  to  towns.  The  powers  of  the  town  were 
derived  from  the  general  body  of  the  community,  but 
what  these  powers  were  was  not  at  first  clearly  outlined. 
In  1634,  the  general  court,  in  order  to  define  them,  pro- 
vided that  the  freemen  of  every  town  had  authority  to  dis- 
pose of  lands  and  woods,  grant  lots,  make  orders  respect- 
ing the  welfare  of  their  towns  not  repugnant  to  the  laws 
and  orders  established  by  the  general  court,  impose  fines 
not  exceeding  twenty  shillings,  and  choose  constables  and 
surveyors  for  highways.  An  attempt  was  made  two  years 
later  to  regulate  the  right  of  representation  on  the  basis  of 
population,  but  finally  in  1639  each  town  was  allowed 
two  representatives  in  the  general  court. 

In  1643  there  was  a  further  development  in  administra 
tion  ;  the  towns  then  thirty  in  number  were  distributed 
into  four  counties.  Already  four  quarterly  courts  existed, 
which  corresponded  to  the  new  divisions,  and  there  was 
also  a  military  organization  by  which  the  militia  were 


THE   POLITICAL   HERITAGE.  Ill 

locally  divided  into  four  regiments,  the  militia  of  each 
county  being  placed  under  command  of  a  lieutenant  cor- 
responding to  the  lord-lieutenant  of  the  English  shire. 
In  this  year  the  division  of  the  legislature  into  two  bodies 
was  accomplished  ;  the  magistrates  in  one,  the  popular 
delegates  in  the  other. 

Religious  intolerance  drove  Roger  Williams  in  1636 
from  the  Massachusetts  Bay  Colony.  The  little  settle- 
ment which  he  founded  at  Providence  at  first  consisted  of 
a  single  township  based  upon  a  written  contract,  which  af- 
firmed that :  "  We,  whose  names  are  here  under,  desirous 
to  inhabit  in  the  town  of  Providence,  do  promise  to  sub- 
ject ourselves,  in  active  or  passive  obedience,  to  all  such 
orders  or  agreements  as  shall  be  made  for  public  good  of 
the  body  in  an  orderly  way,  by  the  major  assent  of  the 
present  inhabitants,  masters  of  families,  incorporated 
together  into  a  township,  and  such  others  whom  they  shall 
admit  unto  them,  only  in  civil  things."  This  was  the 
first  instance  of  the  separation  of  church  and  state. 

New  settlements  were  formed  in  the  neighborhood  of 
the  first,  and  for  three  or  four  years  each  was  independent 
of  the  others.  In  1640  a  general  court  was  held,  which 
appears  to  have  consisted  of  all  the  heads  of  families  who 
had  been  admitted  as  members  of  the  different  townships. 
It  was  a  pure  democracy,  which,  far  in  advance  of  the 
ix  bigotry  of  the  age,  permitted  freedom  of  opinion  in 
religion. 

Connecticut  was  also  an  offshoot  of  the  Massachusetts 
Bay  Colony,  and  owes  its  settlement  to  those  who  were 
opposed  to  the  decision  of  the  general  court  in  1636, 
which  restricted  the  voting  franchise  to  those  only,  who 
were  members  of  churches  recognized  and  admitted  by 
the  magistrates  and  a  majority  of  the  elders.  The  new 


112  POLITICS. 

colony  broadened  the  basis  of  the  suffrage  by  not  limiting 
the  franchise  to  church  members.  Beyond  political  rea- 
sons for  the  migration,  no  doubt  the  inducement  with 
many  was  the  exceeding  fertility  of  the  valley  of  the  Con- 
necticut. The  first  immigration  settled  in  four  planta- 
tions. On  the  theory  that  they  were  all  within  the 
jurisdiction  of  Massachusetts,  ihe  earliest  administration 
of  the  common  affairs  of  the  four  plantations  was  through 
a  commission  of  eight  appointed  by  the  general  court  of 
that  colony.  Local  affairs  were  attended  to  in  township 
meetings.  In  the  second  year  the  commission  was 
abolished  and  a  general  court  of  the  colony  convened. 
The  New  Haven  Colony  was  established  through  the 
consolidation  of  several  small  settlements  in  the  southern 
part  of  the  new  territory.  This  new  colony  was  not  as 
liberal  with  the  voting  franchise  as  its  neighbor,  prohibit- 
ing those  from  voting  for  magistrates  or  delegates  to  the 
,\  general  court,  who  were  not  church  members. 

In  1639  a  settlement  was  commenced  at  Exeter,  within 
the  present  limits  of  New  Hampshire,  a  church  estab- 
lished, and  a  political  organization  formed  ;  a  democracy, 
in  which  the  whole  body  enacted  laws.  Other  small  set- 
tlements of  a  similar  character,  and  taking  on  the  plan- 
tation or  township  form  of  political  administration  were 
made  as  far  east  as  the  Piscataqua  River,  and  even  into 
the  present  limits  of  Maine. 

During  the  period  of  twenty-two  years  succeeding  the 
landing  of  the  Pilgrims  at  Plymouth,  English  Puritan 
settlements  had  scattered  themselves  at  various  points, 
more  or  less  isolated,  over  a  wide  expanse  of  territory, 
extending  from  the  borders  of  Maine  to  Long  Island 
Sound.  There  were  five  separate  political  bodies,  four  of 
which,  Plymouth,  Massachusetts  Bay,  Connecticut,  and 


THE   POLITICAL   HERITAGE.  113 

New  Haven,  were  formed,  in  1643,  into  the  confederacy, 
known  as  the  United  Colonies  of  New  England,  the  re- 
maining one,  Rhode  Island,  standing  aloof. 

This  confederacy  then  embraced  a  population  of  about 
twenty-four  thousand  persons,  fifteen  thousand  being  in 
Massachusetts,  three  thousand  each  in  Plymouth  and 
Connecticut,  and  twenty-five  hundred  in  New  Haven. 

This  was  at  the  period  when  in  the  mother  country 
the  Roundheads  and  Cavaliers  had  come  to  blows,  and 
the  colonies  were  left  largely  to  themselves. 

The  political  and  social  foundations  of  the  New  Eng- 
land colonies  were  now  laid  ;  subsequent  changes  were 
only  developments  from  forms  at  this  time  established. 
Emigration  almost  entirely  ceased  after  the  commence- 
ment of  the  civil  war,  and  the  growth  was  thenceforth 
the  natural  increase  of  the  population. 

The  political  unit  of  New  England  was  the  "planta- 
tion," which  grew  around  a  church  congregation,  as  in 
Virginia  it  had  grown  around  the  farms  of  the  "planters," 
mentioned  in  the  charter  of  King  James.  In  New  Eng- 
land, as  we  have  seen,  the  plantation,  which  was  in  fact 
the  congregation,  became  the  town,  with  territorial  boun- 
daries, and  a  corporate  character.  The  town  was  the 
analogue  of  the  parish  in  England  and  Virginia.  If  all 
the  inhabitants  of  an  English  Parish  had  been  bodily 
transferred  to  New  England,  in  1630,  and  thrown  upon 
their  own  resources,  they  would,  naturally,  have  fallen 
into  the  methods  of  conducting  local  affairs  through 
meetings  at  intervals,  of  all  householders  who  were 
church  members,  and  they  would  have  appointed  a  ves- 
try, or  church  wardens,  or  selectmen,  to  supervise  affairs 
during  the  intervals,  or  for  stated  periods.  The  English 
parish  was  in  those  days  a  local  democracy  of  house- 
holders, with,  it  is  true,  a  limited  range  of  powers,  be- 


114  POLITICS. 

cause  of  the  development  above  it  of  a  complicated  sys- 
tem of  national  administration  ;  but  its  characteristics 
were  such  that,  if  taken  out  of  the  nation,  and  trans- 
ferred to  a  wilderness,  it  could  instantly  adapt  itself  to 
the  new  conditions,  by  simply  extending  the  range  of  its 
powers  ;  because  the  changes  that  would  have  been  neces- 
sary would  have  been  only  such  as  the  new  circumstances 
made  imperative. 

As  stated,  the  basis  of  each  plantation  in  New  England 
was  a  church  congregation.  The  one  which  came  over 
in  the  Mayflower,  was  Brownist  or  Separatist,  and  had 
been  formed  at  the  time  of  the  withdrawal  of  this  sect 
from  the  Church  of  England.  The  Separatists  subse- 
quently became,  in  the  old  country,  the  powerful  sect  of 
Independents.  They  deemed  that  a  national  church  was 
not  justified  by  the  word  of  God,  and  claimed  the  right 
to  elect  their  own  pastors,  and  to  manage  their  own  in- 
ternal church  affairs.  It  was  a  democratic  movement  in 
the  Church  of  England,  connected  with  the  greater  demo- 
cratic upheaval  of  the  Reformation,  and  more  particularly 
with  the  religious  movements  in  Germany,  even  ante- 
dating Calvin.  As  early  as  1523-4,  twelve  years  before 
the  appearance  of  the  Institutes  of  the  great  Genevese, 
the  Landgrave  Philip  of  Hesse,  in  conjunction  with  the 
spiritual  estate  of  his  realm,  held  a  synod,  at  which  a 
scheme  of  independent  church  government  was  framed. 
The  churches  could  admit  any  citizen  of  irreproachable 
life,  and  competent  instruction.  Each  parish  or  con- 
gregation was  obliged  to  set  apart  a  certain  number  of 
its  members  for  military  service,  and  to  have  a  common 
fund,  to  which  all  should  contribute,  and  out  of  which 
the  poor  and  persecuted  should  receive  assistance. 
There  was  entire  independence  of  the  several  church 
communities.  Every  year,  the  churches,  represented  by 


THE   POLITICAL   HERITAGE.  115 

their  elected  bishops  and  deputies,  were  to  assemble  in 
general  synod  to  hear  complaints  and  resolve  doubts. 
This  scheme,  it  is  probable,  furnished  the  model  upon 
which  Calvin  framed  his  laws,  and  upon  which  the 
French  Protestants,  and  the  Scotch  and  Puritan  Churches 
were  founded. 

Calvin's  plan  of  church  government  was  not  so  demo- 
cratic. The  clergy  predominated  in  the  two  courts  which 
managed  church  affairs,  but  there  were  two  democratic 
features.  All  nominations  of  pastors  had  to  be  approved 
by  the  members  of  the  church,  and  there  was  a  lay  rep- 
resentation in  the  consistorial  court  of  discipline.  The 
self-governing  quality  of  these  new  churches  was  an  at- 
tractive feature  to  the  Separatists  in  England,  who  were 
mostly  composed  of  poor  and  radical  people.  At  first 
the  non-conformists  did  not  go  as  far  as  the  Separatists. 
Their  effort  was  to  reform  the  parent  church,  but  they 
very  soon  found  themselves  subjected  to  the  Acts  of  Su- 
premacy, and  of  Uniformity,  passed  in  the  reign  of  Eliza- 
beth, and  were  finally  driven  to  deny  the  supremacy  of 
the  crown  in  religious  matters.  The  original  settlers 
of  Massachusetts  Bay  Colony,  and  their  offshoots  in  Con- 
necticut, were  non-conformists,  though  when  they  came 
over  in  1630  they  stood  toward  the  government  in  much 
the  same  attitude  as  the  Separatists.  They  had  no  com- 
mon church  government  of  their  own,  but  were  split  up 
into  separate  congregations,  each  managing  its  own  spirit- 
ual and  temporal  affairs. 

Yet,  while  the  church  tie  and  organization  were  so 
powerful,  and  the  colonists  of  Plymouth  and  Massachu- 
setts Bay  were  so  careful  to  confine  the  voting  power  to 
church  members,  it  is  still  clearly  evident  that  their  local 
political  institutions  were  modeled  upon  the  parish  system 
to  which  they  had  been  accustomed  at  home. 


Il6  POLITICS. 

The  town  being  the  unit,  the  county  was  an  aggrega- 
tion of  towns ;  and,  subsequently,  the  counties  and 
the  towns  were  the  political  divisions  of  the  state. 

In  the  Massachusetts  colony,  at  the  period  of  the  New 
England  Confederacy  of  1643,  tne  freemen  of  each  town 
could  choose  not  to  exceed  nine  selectmen,  who  could 
exercise  certain  restricted  powers.  At  stated  intervals  the 
freemen  could  assemble  in  town  meeting,  and  pass  laws 
concerning  the  general  welfare,  provided  they  were  of  a 
"prudential  nature,"  not  repugnant  to  the  general  laws 
of  the  colony,  and  the  penalties  of  which  should  not 
exceed  twenty  shillings.  Although  it  is  not  clear  what 
powers  the  freemen  of  the  "plantations"  and  parishes 
of  Virginia  exercised  prior  to  1640,  yet  there  is  little 
doubt  that  they  took  upon  themselves  the  local  authority, 
in  temporal  matters,  of  an  English  parish,  and  extended 
this  authority  to  meet  the  new  exigencies  of  pioneer  life. 
It  is  certain  that,  in  1662,  the  house  of  burgesses  passed 
an  act  which  in  terms  provided  that  counties  and  parishes 
should  be  allowed  by  a  majority  vote  to  make  laws  for 
cases  where  there  was  no  general  law.  This  was  prob- 
ably a  legislative  recognition  of  an  existing  practice,  as 
was  undoubtedly  the  case  when  the  Massachusetts  gen- 
eral court  in  1641,  defined  the  powers  of  towns. 

There  was  this  marked  difference,  however,  between 
the  New  England  colonies  and  Virginia,  that  the  freemen 
of  the  former  elected  their  executive  officers  annually, 
while  in  the  latter  the  greater  part  of  them  were  appoint- 
ed by  the  governor,  who  was,  at  first,  the  appointee  of 
the  home  corporation,  and  subsequently  of  the  king. 
Some,  it  is  true,  were  appointed  by  the  governor  in  con- 
junction with  his  councilors.  This  early  assumption  by 
the  New  Englanders  of  control  of  the  executive  branch 
of  the  government  marks  a  distinct  step  in  the  direction 


THE   POLITICAL   HERITAGE.  I.I/ 

of  democracy  beyond  the  Virginians.  It  was  in  this 
manner  that  the  democratic  structure  of  the  Puritan 
churches  was  distinctly  reflected.  They  had  cut  loose 
from  the  king  as  head  of  the  church,  and  they  had 
transferred  to  their  new  home  the  seat  of  the  corporation 
which  held  the  royal  charter.  Under  these  circumstances, 
they  did  what  the  corporation,  if  it  had  remained  in  old 
England,  would  have  done,  elected  their  own  officers  by 
the  body  of  freemen. 

Turning  now  to  New  York,  we  find  that  it  owed  its 
first  settlement,  like  many  other  colonies,  to  a  specu- 
lative corporation.  The  Dutch  West  India  Company, 
under  its  charter  from  the  government  of  the  Netherlands, 
undertook  to  colonize  the  new  territory  in  the  neighbor- 
hood of  the  Hudson  River.  It  is  not  necessary  to  our 
purpose  to  examine  very  closely  the  history  of  this  com- 
mercial venture,  because  the  Dutch  regime  made  little 
or  no  impression  politically,  however  great  its  impression 
socially,  upon  the  future  State.  As  early  as  1630,  a  feudal 
element  was  introduced,  which  afterwards  was  the  occasion 
of  considerable  agitation  about  land  tenures,  even  late 
in  this  century.  This  was  in  consequence  of  the  large 
grants  of  land  made  to  the  patroons,  under  conditions 
of  colonization,  and  with  certain  governmental  prerog- 
atives attached  to  thsm.  The  elements  of  local  self- 
government  then  existing  in  Holland  were  not  trans- 
planted. It  is  from  the  capture  by  the  English  in  1664 
that  the  political  life  of  New  York  dates. 

The  first  body  of  laws  was,  in  part,  borrowed  from  New 
England.  These  laws,  it  is  true,  were  only  made,  at  first, 
applicable  to  Long  Island,  which  was  largely  settled  by 
people  from  the  eastern  colonies.  In  each  town,  eight 
men  were  to  be  chosen  as  overbeers  by  the  freeholders  for 


Il8  POLITICS. 

one  year.  A  constable  was  also  annually  chosen  by  the 
freeholders  ;  and  the  overseers  and  constables  had  power 
to  make  local  ordinances  for  the  town.  This  is  a  varia- 
tion from  the  New  England  town  meeting1  system,  and 
furnishes  the  model  for  the  local  arrangement  prevailing 
in  most  of  the  middle  and  western  states,  where  it  is 
customary  for  the  voters  to  elect  supervisors  or  overseers, 
who  enact  the  laws  of  the  county  or  township.  The 
sheriff  and  justices  of  the  peace  were  appointed  by  the 
governor,  taxes  were  assessed  annually  in  each  town. 
There  were  parishes  also,  with  church  wardens  elected 
annually  by  the  overseers  and  constables.  The  clergyman 
was  elected  by  the  major  part  of  the  householders.  No 
person  could  be  disturbed  on  account  of  religious  belief. 
When,  later,  the  English  were  securely  in  possession  of 
the  country,  the  government  was  very  rapidly  shaped  in 
conformity  with  the  parent  system. 

The  eastern  part  of  New  Jersey  was,  at  first,  under 
the  influence  of  the  Dutch  West  India  Company,  and, 
like  New  York,  did  not  have  local  self-government  until  it 
also  came  into  the  possession  of  the  English. 

As  early  as  1677,  western  New  Jersey  was  purchased 
by  the  Quakers,  and  they  immediately  adopted,  in  the 
settled  portions,  a  system  which  recognized  democratic 
political  equality  and  religious  freedom.  They  even 
went  to  the  extent  of  requiring  the  elected  deputies  to 
the  general  assembly  to  promise  in  a  sealed  agreement  to 
obey  the  instructions  of  their  constituents. 

The  Maryland  charter  to  Lord  Baltimore  was  issued 
in  1632.  It  conferred  legislative  power  upon  the  Lord 
Proprietor,  together  with  a  majority  of  the  colonists,  or 
their  deputies.  Every  freeman  could  participate  in 
making  the  laws,  in  person  or  by  proxy,  and,  at  the  out- 


THE   POLITICAL   HERITAGE.  1 19 

set,  all  the  colonists  were  privileged  to  meet  in  gen- 
eral assembly.  As  the  colony  grew,  the  local  govern- 
ment was  carried  on  in  hundreds ;  each  of  which 
elected  the  burgesses  to  the  legislative  body.  For  a  long 
time,  the  Lord  Proprietor  was  vested  with  a  singular 
power,  that  of  summoning  by  special  writ  any  person 
whose  presence  he  particularly  desired,  to  participate  in 
legislation.  By  this  means,  he  could  at  any  time  obtain 
control  of  the  lower  house  through  his  friends.  At  first 
there  was  but  one  house,  but  finally  two,  an  upper  and 
lower.  The  governmental  unit  was  the  hundred.  In 
course  of  time  counties  were  formed.  In  1671,  there 
were  seven,  containing  a  total  population  of  about  20,000. 
Local  self-government  appears  to  have  been  more  re- 
stricted than  in  Virginia,  as  most  of  the  officers  were 
appointed  by  the  Proprietor.  His  power  was  hereditary, 
and,  naturally,  tended  constantly  to  become  despotic. 
The  disposition  for  freedom  and  equality  which  seemed  to 
spring  up  spontaneously  on  American  soil,  excited  the 
people  to  struggle  for  the  privileges  of  self-government. 

Religious  tolerance  prevailed  until  1692,  when  the 
Church  of  England  was  established,  and  the  colony  was 
divided  into  parishes,  each  of  which  was  subject  to  taxa- 
tion for  the  support  of  a  clergyman. 

The  religious  tolerance  which  prevailed  in  colonial 
Maryland,  so  much  vaunted,  and  so  often  contrasted  with 
the  narrow  intolerance  common  in  New  England,  was 
evidently  dictated  by  worldly  prudence,  rather  than 
prompted  by  an  advanced  charity.  It  must  be  remem- 
bered, that  at  that  time,  the  feeling  in  England  was  bit- 
terly hostile  to  the  Papists,  and  that  the  grant  of  lands  to 
Lord  Baltimore  was  from  a  Protestant  monarch,  of  a 
portion  of  the  territory  claimed  by  Virginia,  a  Protestant 
colony.  Considerations  of  prudence,  also,  forbade  exciting 


120  POLITICS. 

the  animosity  of  the  Puritan  colonies  of  New  England. 
Obviously,  therefore,  Lord  Baltimore,  whatever  might 
have  been  his  disposition,  could  not,  with  safety,  have 
founded  his  new  settlement  upon  the  basis  of  intolerance. 
Evidently  the  prosperity  of  his  dominions  was  linked 
with  liberality  in  religion,  because  a  contrary  policy 
would  have  brought  upon  him  not  only  the  especial 
enmity  of  Virginia,  but  also  the  decided  ill-will,  and 
possible  active  hostility,  of  the  mother  country  and  New 
England.  Besides,  he  was  sufficiently  worldly-minded  to 
hope  to  make  his  colony  profitable,  and  by  leaving  the 
door  wide  open  to  all,  it  would  become  so,  and  at  the 
same  time  afford  an  asylum  to  his  persecuted  co- 
religionists. 

We  have  another  illustration  of  the  formation  of  dem- 
ocratic self-government  in  the  early  settlements  along  the 
borders  of  Albemarle  Sound  in  the  present  State  of 
North  Carolina.  A  small  body  of  emigrants  from  New 
England,  with  others  who  subsequently  joined  them  from 
other  quarters,  immediately  adopted  a  simple  form  of 
government.  There  was  a  council  of  twelve,  six  of 
whom  were  nominated  by  the  proprietors,  and  six  by  the 
assembly,  which  body  was  elected  by  the  freeholders  of 
the  settlement.  A  little  later,  in  1670,  a  new  body  of 
emigrants  from  England  landed  in  what  is  now  South 
Carolina.  The  Carolinas  had  been  granted  to  eight  pro- 
prietors, who  projected  an  elaborate,  impracticable  sys- 
tem of  government,  which,  when  the  attempt  was  made 
to  apply  it  to  the  infant  settlement  of  scattered  planters, 
was  so  ludicrously  out  of  proportion,  and  so  unsuitable 
to  the  new  conditions,  as  to  fall  immediately  into  sub- 
stantial desuetude. 

The  "Fundamental  Constitutions  of  Carolina  "  sought 


THE  POLITICAL  HERITAGE.  121 

to  establish  a  government  on  monarchical  principles,  in 
order,  as  expressed  in  them,  to  "avoid  erecting  a  numer- 
ous democracy. "  A  kind  of  feudal  system  was  ordained, 
in  which  there  should  be  a  palatine,  also  admirals, 
chamberlains,  chancellors,  constables,  chief  justices,  high 
stewards,  and  treasurers  chosen  from  among  the  proprie- 
tors. The  province  was  to  be  divided  into  counties,  these 
into  seignories,  laronies,  and  precincts,  to  be  owned  by 
an  hereditary  nobility  which  should  consist  of  landgraves 
and  caciques.  The  power  of  alienating  their  domains 
was  denied  to  the  nobility.  The  common  people  were  to 
be  known  as  leetmen,  and  were  to  be  under  the  jurisdic- 
tion of  the  respective  lords  of  the  seignories.  Nor  would 
any  lee'.man  or  leetwoman  have  liberty  to  remove  from 
the  land  of  his  or  her  particular  lord  without  his  license 
in  writing ;  and  all  the  children  of  leetmen  were  to  be 
leetmen  from  generation  to  generation. 

An  elaborate  system  of  courts  was  provided  for,  among 
others  a  chamberlain's  court  with  jurisdiction  to  regulate 
all  fashions,  habits,  badges,  games,  and  sports.  A  parlia- 
ment was  contemplated  with  a  house  of  nobility,  and  a 
lower  house  composed  of  one  freeholder  from  each  pre- 
cinct, who  owned  at  least  five  hundred  acres  of  land,  and 
who  was  to  be  elected  by  freeholders,  possessed  of  fifty 
acres  each.  It  seems  almost  impossible  that  so  absurd  a 
scheme  of  polity  could  have  been  suggested  for  a  body  of 
Anglo-Saxon  immigrants  in  a  wilderness,  by  men,  some 
of  whom,  like  Shaftesbury,  were  practical  statesmen,  and 
that  it  should  be  acquiesced  in  by  so  clear-headed  a 
thinker  as  Locke.  A  recent  biographer  of  Locke*  remarks 
that  the  plan  was  initiated  by  Shaftesbury,  and  modified 
by  his  fellow  proprietors,  but  that  Locke  had  a  large  share 

*  H.  R.  Bourne. 


122  POLITICS. 

in  the  work,  though  some  of  its  features  were  distinctly 
at  variance  with  views  previously  expressed  by  him. 

These  constitutions  are,  however,  worthy  of  study  as 
indications  of  the  ideals  of  the  ruling  class  and  leaders  of 
opinion  in  England  on  government  and  society.  Their 
framers  saw  in  the  virgin  fields  of  the  Carolinas  an  oppor- 
tunity to  build  up  a  prosperous  state  on  what  they  be- 
lieved to  be  true  social  principles.  Their  plan  shows 
what  a  strong  hold  feudal  ideas  still  had  on  the  ruling 
classes.  It  is  a  striking  confirmation  of  the  truth  that 
political  freedom  finds  its  nourishment  and  growth  among 
the  mass  of  the  common  people  and  not  among  social  and 
intellectual  leaders.  The  redeeming  feature  in  the  scheme 
was  the  broad  tolerance  in  religion,  which,  no  doubt  was 
the  result  in  part  of  the  actual  indifference,  if  not  positive 
skepticism  of  some  of  the  proprietors,  but,  more'probably, 
because  the  enterprise  was  at  bottom  like  most  of  the  co- 
lonial undertakings  of  that  day,  a  huge  land  jobbing 
scheme,  and  the  object  was  to  draw  settlers  from  J;he 
dissenters.  In  point  of  fact,  many  Puritans  did  go  to  the 
colony. 

The  colonists  never  tolerated  these  absurd  constitutions. 
The  attempt  to  enforce  them,  together  with  the  constant 
interference  of  the  proprietors,  obstructed  for  a  long 
time  the  natural  effort  to  frame  local  democratic  institu- 
tions. Even  the  people  would  accept  only  such  regula- 
tions of  the  proprietors,  made  from  time  to  time,  as  they 
thought  useful. 

In  the  earlier  years  there  were  three  governments  in  the 
two  Carolinas  ;  one  at  Albemarle,  one  at  Cape  Fear,  and 
one  at  Charleston.  These  were  really  no  more  than  single 
counties  each  presided  over  by  a  governor.  In  the  first 
years  of  the  settlement  the  people,  disregarding  the  con- 
stitutions, met  at  Charleston,  and  elected  representatives 


THE   POLITICAL  HERITAGE.  123 

for  the  purpose  of  making  laws.  As  already  stated,  many 
Puritans  had  been  attracted  to  the  new  colony,  and  they, 
with  other  dissenters,  constituted  the  most  numerous  party 
in  the  country.  A  number  of  Cava.iers  having  received 
grants,  brought  over  their  families  and  very  soon  secured 
most  of  the  appointments  within  the  gift  of  the  proprie- 
tors. Before  long  there  were  two  distinct  parties,  the  Cav- 
alier or  aristocratic,  and  the  democratic  or  Puritan.  Be- 
tween 1700  and  1719,  the  hostility  between  them  became 
virulent,  and  at  last  in  the  latter  year  the  people  dis- 
avowed the  proprietary  government,  and  transferred  their 
allegiance  directly  to  the  king.  The  general  framework 
of  the  government  under  which  they  now  continued 
until  the  revolutionary  war,  consisted  of  a  governor  and 
council  appointed  by  the  king.  The  governor  being 
invested,  as  far  as  compatible,  with  the  executive  and 
judicial  powers  of  the  English  monarch.  The  council 
was  the  upper  legislative  branch  ;  the  assembly  consisted 
of  representatives  elected  by  the  freeholders. 

Prior  to  1704,  there  appear  to  have  been  parishes.  In 
that  year,  a  carefully  drawn  statute  was  adopted,  regulat- 
ing church  affairs.  The  boundaries  of  parishes  were 
designated.  The  clergyman  was  to  be  elected  by  the 
major  part  of  the  inhabitants  of  the  parish,  who  were  of 
the  Church  of  England,  and  were  freeholders  or  tax- 
payers. In  each  parish  nine  vestrymen  were  to  be  elected 
annually,  also  two  church-wardens.  All  church-rates  were 
to  be  levied  by  the  vestrymen.  It  appears  also  that  the 
delegates  to  the  assembly  were  elected  from  the  parishes. 
In  1740,  the  government,  when  the  new  system  had  been 
in  force  twenty  years,  consisted  of  the  governor,  twelve 
councilors  appointed  by  the  king,  and  an  assembly  of 
forty-four  members,  elected  every  third  year  by  the  free- 
holders of  sixteen  parishes.  Some  of  the  executive  offi- 


I  24  POLITICS. 

cers  were  appointed  by  the  crown,  and  some  by  the  as- 
sembly. The  administration  was  so  arranged  that  the 
power  to  initiate  laws,  and  to  regulate  the  amount  of 
taxes,  their  custody  and  disbursement,  were  in  the  hands 
of  the  landholders,  while  the  executive  and  administrative 
branches  cha-ged  with  the  details  of  public  affairs  were  in 
the  hands  of  the  representatives  of  the  crown. 

As  was  the  case  in  all  the  colonies,  so  in  the  Carolinas, 
the  king  had  a  veto  power  over  all  legislation.  At  the 
period  last  spoken  of,  1740,  there  were  in  South  Carolina 
about  twenty-five  thousand  whites,  and  thirty-nine  thou- 
sand negro  slaves. 

North  Carolina,  in  1729,  was  separated  from  South 
Carolina,  and  thenceforth,  as  a  royal  province,  was  gov- 
erned in  substantially  the  same  form  as  the  latter.  Its 
primary  division  was  into  three  counties.  There  were 
also  parishes.  At  that  time  the  whole  of  the  scattered 
population  did  not  exceed  ten  thousand. 

It  is  not  necessary  to  linger  long  over  the  governmental 
foundations  of  Pennsylvania.  They  were  from  the  be- 
ginning very  nearly  as  democratic  as  those  of  Massachu- 
setts. There  was  a  council  consisting  of  an  upper  house, 
whose  members  were  elected  for  three  years,  one-third 
being  annually  renewed  ;  there  was  also  an  assembly 
chosen  annually.  At  first  a  strange  custom  prevailed,  by 
which  the  laws  were  proposed  by  the  governor  and  coun- 
cil, and  then  submitted  to  the  people  in  their  local  meet- 
ings ;  if  these  proposed  laws  were  approved,  the  assembly 
reported  the  decision  to  the  people.  This  peculiar  system 
was,  however,  very  soon  modified,  so  that  the  assembly 
proposed  such  laws  as  it  desired,  and  a  veto  power  was 
left  in  the  governor.  The  people  elected  most  of  the  ex- 
ecutive officers,  except  the  governor.  The  government 
developed  rapidly  into  democracy,  for  as  early  as  1696, 


THE   POLITICAL  HERITAGE.  125 

the  governor  had  become  no  more  than  the  chairman  of 
the  council,  the  tenure  of  the  judiciary  depended  upon 
the  legislature,  and  rotation  in  office  was  insisted  upon  by 
the  people. 

Georgia  was  founded  more  for  benevolent  objects  than 
for  gain  ;  it  was  intended  as  a  place  of  refuge  for  poor 
debtors.  The  charter  was  designed  for  a  close  corporation, 
as  all  power  was  given  for  twenty-one  years  to  the  trustees. 
When  the  first  band  of  one  hundred  and  sixteen  settlers 
arrived,  the  new  territory  was  laid  off  into  eleven  town* 
ships,  lying  along  the  river.  Each  township  was  to  form 
a  parish,  and  when  it  had  one  hundred  families  was  to 
have  the  right  to  send  two  members  to  an  assembly.  The 
attempt  of  the  home  trustees  of  the  corporation  to  carry 
on  the  government  of  their  distant  possession  in  the 
parental  way  proved  in  this,  as  in  all  instances  where 
similiar  attempts  were  made,  an  utter  failure.  The 
colonists,  and  the  servants  who  were  sent  over,  deserted, 
when  they  could,  to  the  neighboring  colonies.  Those 
who  remained,  complained  bitterly  of  the  restrictions  upon 
the  tenure  and  leasing  of  lands.  They  complained  also 
of  the  method  of  cultivation,  because  negro  slavery  was 
denied  ;  and  moreover  that  they  were  not  given  a  suffi- 
cient voice  in  the  government.  At  last,  after  twenty  years' 
experiment,  the  proprietors  surrendered  the  charter,  and  in 
1752,  the  king  made  Georgia  a  royal  government,  to  be 
under  the  control  of  the  Board  of  Trade  and  Plantations. 

A  government  was,  thereupon,  framed  similar  to  those 
prevailing  in  the  neighboring  colonies. 


CHAPTER   IX. 

EARLY    IMPULSES    TO    NATIONAL    UNITY    IN    THE    BRITISH 
COLONIES. 

IN  beginning  with  a  system  of  local  self-government 
analogous  to  the  parish  system  of  England  and  develop- 
ing through  counties  into  states,  the  British  colonies 
within  the  present  limits  of  the  United  States  were  moved 
to  a  very  great  extent  by  the  inherent  force  of  a  political 
instinct.  The  impulses  to  a  closer  union  of  these  separate 
colonies  and  to  their  fusion  into  a  nation  can  be  traced, 
in  part  also,  to  external  causes,  which  accelerated  a  growth 
that  might  otherwise  have  required  a  long  period  of  time 
to  develop  a  nation. 

The  especially  noticeable  feature  of  the  progress  of  the 
British  colonies  is,  that  whenever  the  first  colonists  were 
left  to  themselves  to  arrange  their  own  political  relations, 
they  fell  spontaneously  into  a  local  self-government  anal- 
ogous to  the  parish  system  they  had  been  accustomed  to 
at  home ;  and  as  soon  as  it  became  necessary  they  natur- 
ally adopted  a  parliamentary  system  of  government  to  the 
extent  at  least  of  having  representatives  elected  by  the 
householders,  and  of  having  two  houses  of  legislation. 

The  passengers  who  landed  from  the  Mayflower  consti- 
tuted, at  first,  a  little  sovereignty  ;  and  while  in  the 
isolated  and  self-dependent  condition  of  the  first  two 
decades  of  the  settlement,  they  adopted  methods  of  ad- 
ministration which  in  large  part  remained  structurally  the 
same  when  the  community  was  merged  into  the  larger 
province.  There  was  at  first  the  church  congregation. 


EARLY   IMPULSES   TO   NATIONAL   UNITY.      12  J 

the  members  of  which  alone  had  the  privilege  of  voting. 
In  England  every  householder  was  obliged  by  law  to 
contribute  to  the  support  of  the  parish  church,  whether 
technically  a  member  or  not,  and  in  return  he  was  allowed 
a  voice  in  parish  affairs.  In  New  England  the  funda- 
mental idea  was  the  same.  The  pivot  around  which  the 
political  life  of  the  new  settlement  revolved  at  first,  was 
also  the  church.  The  church  congregation  was  turned 
into  the  town,  as  in  earlier  days  the  town  was  turned  into 
the  parish  in  England.  In  the  other  colonies,  a  parish 
system,  more  or  less  modified,  appears  as  the  basis  of 
local  self-government.  These  parishes,  or  plantations,  or 
towns,  have  local  officers,  like  selectmen,  or  overseers, 
and  the  power  through  local  assemblies  to  make  loca/ 
laws.  The  further  process  of  growth  was  through  thd 
union  of  these  several  primitive  communities,  into  coun- 
ties, with  special  officers  and  jurisdictions,  and  the  union 
of  the  counties  into  the  province  or  the  State. 

It  is  true  the  political  development  of  the  colonies  did 
not  go  on  in  this  orderly  manner.  In  most  of  them 
there  appeared  a  simultaneous  evolution  of  the  different 
parts  ;  but  this  was  only  because  there  was  a  rapid  repro- 
duction of  the  national  growth  of  the  parent,  which  had 
been  centuries  in  reaching  the  national  unity  it  had 
acquired  in  the  early  part  of  the  seventeenth  century. 

A  great  variety  of  circumstances,  external  as  well  as 
internal,  controlled  and  shaped  the  aggregation  of  the 
primal  units  into  larger  political  bodies.  It  is  only  in  the 
history  of  each  nation  that  the  physical  and  intellectual 
conditions  can  be  discerned  which  moulded  it  into  its 
present  shape.  England  is  as  much  indebted  to  the 
span  of  water  which  separates  her  from  the  Continent,  as 
to  the  sturdy  qualities  of  her  people,  for  her  parliament- 
ary government ;  and  certainly  the  United  States  may 


128  POLITICS. 

ascribe' the  free  political  institutions  it  now  enjoys,  in  part 
to  its  geographical  position,  as  well  as  to  the  genius  of 
the  pioneers. 

Reverting  to  the  colonial  life  of  our  country,  we  see 
that  there  were  also  external  forces  operating  in  the  direc- 
tion of  nationality. 

The  settlements  during  the  first  century  and  a  half 
kept  very  close  to  the  Atlantic  seaboard,  and  the  principal 
bays  and  rivers  connecting  with  the  ocean.  These  settle- 
ments had  very  rapidly  formed  themselves  into  distinctive 
political  communities ;  that  is,  distinctive  in  many  par- 
ticulars as  to  each  other,  but  all  bound  by  a  common  tie 
to  Great  Britain.  By  1 760,  each  colony  had  a  govern- 
ment in  essence,  though  not  in  all  its  forms,  like  that  of 
the  mother  country.  There  was  a  single  executive  head  ; 
an  upper  chamber  of  legislation,  in  some  elected,  in  some 
appointed  ;  a  lower  legislative  branch  directly  elected  by 
the  people,  and  a  judiciary  to  pass  upon  disputes  between 
members.  Moreover,  each  colony  was  divided  into  terri- 
torial subdivisions,  such  as  counties  or  towns,  in  which, 
subject  to  the  superior  legislative  power  of  the  general 
assembly,  the  people  could  make  local  laws,  and  in 
many,  though  not  in  all,  elect  the  officers  to  execute  the 
general  as  well  as  local  statutes.  These  structural  forms 
had  grown  almost  spontaneously  and  very  rapidly,  and  in 
their  growth  they  follow  the  natural  development  of  the 
already  matured  institutions  of  the  mother  country.  The 
variation  from  the  parent  form  was  in  the  enlargement 
and  elaboration  of  local  self-government,  and,  in  the  New 
England  States  and  Pennsylvania,  in  the  frequent  elections 
of  executive  officers. 

The  territorial  sovereignty  was  British.  Each  colony 
was  only  a  subordinate  local  government  ;  all  were  part 
of  the  greater  kingdom.  The  influences  which  impelled 


EARLY   IMPULSES   TO   NATIONAL   UNITY.      I2Q 

the  colonies  to  a  closer  union  arose  from  external  dan- 
gers. As  early  as  1643  there  was,  as  already  mentioned, 
a  confederation  of  the  four  principal  New  England  col- 
onies :  Massachusetts,  Plymouth,  Connecticut  and  New 
Haven.  The  written  compact  which  they  entered  into 
gives  as  a  reason  for  their  action,  that  they  "live  encom- 
passed with  people  of  several  nations,  and  strange  lan- 
guages, which  may  hereafter  prove  injurious  to  us  or  our 
posterity  ;  "  and  in  addition,  referring  to  the  distractions 
in  England,  in  consequence  of  which  they  were  thrown 
entirely  upon  their  own  resources,  concludes  that  it  is  : 
"Our  bounden  duty  without  delay  to  enter  into  a  present 
convocation  amongst  ourselves  for  mutual  help  and 
strength." 

The  proposed  confederation  was  based  upon  three 
ideas  :  i.  The  practical  severance  of  the  colonies  from 
the  sovereign  power  in  consequence  of  the  civil  war  in 
England  ;  2.  A  danger  from  foreigners  directed  against 
them  as  Englishmen,  and  a  danger  from  savages  directed 
against  them  in  common  ;  3.  Because  they  were  one  in 
nation  and  religion  and  should  therefore  in  other  respects 
be  one.  These  ideas  rested  upon  the  anterior  sentiment 
of  a  common  nationality. 

This  confederation  continued  with,  one  may  say, 
diminishing  force  for  nearly  half  a  century.  It  was  in 
many  respects  in  the  nature  of  a  sovereignty,  but  it  con- 
tained the  inherent  defect  common  to  federations  between 
independent  states,  where  the  delegated  central  power  can 
deal  only  with  the  states  and  not  directly  with  the  indi- 
viduals in  the  states. 

In  three  or  four  years  after  the  formation  of  the  confed- 
eracy, a  serious  dispute  arose  between  the  three  smaller 
colonies  on  one  side  and  Massachusetts  on  the  other. 
Again,  in  a  few  years  new  dissensions  arose,  and  threats 
6* 


I3O  POLITICS. 

of  dissolving  the  confederacy  were  loudly  expressed.  Its 
greatest  vigor  was  naturally  prior  to  1660,  when  the  at- 
tention of  the  home  authorities  was  almost  entirely  with- 
drawn from  the  colonies  in  consequence  of  their  domestic 
troubles  ;  but  when  Charles  II.  was  restored  to  the 
throne  renewed  attention  was  given  to  the  American  de- 
pendencies, and  the  confederacy  rapidly  lost  importance. 

Again,  prior  to  1688,  a  series  of  French  missions  and 
trading  posts  had  been  established  along  the  St.  Lawrence 
from  its  mouth  to  the  waters  connecting  it  with  Lake 
Champlain  and  down  through  western  New  York  and 
Pennsylvania,  taking  in  the  valley  of  the  Mississippi,  and 
extending  to  the  mouth  of  that  river.  The  base  from 
which  these  were  projected  was  a  growing  French  colony 
in  lower  Canada. 

After  William  III.,  the  implacable  enemy  of  Louis 
XIV.,  ascended  the  throne  of  England  in  1688,  the  effort 
of  France  during  the  succeeding  seventy-four  years  was  to 
establish  itself  in  North  America  and  to  harass  the  Eng- 
lish colonies  settled  there.  The  French  were  constantly 
intriguing  with  the  Indians  with  the  result  of  almost  con- 
tinuous warfare  between  the  savages  and  colonists  in  which 
the  French  were  more  or  less  implicated,  so  that,  with 
the  French  colonies  in  Canada  and  the  cruisers  of  the 
enemy  on  the  ocean,  the  weak  communities  scattered  at 
intervals  over  a  narrow  strip  of  territory,  about  twelve 
hundred  miles  long  and  not  much  above  an  average  of 
one  hundred  miles  in  depth  from  the  shore  line,  were 
constantly  menaced  in  front  on  the  coast  and  in  the  rear 
and  flanks  in  the  wilderness. 

This  continual  pressure  naturally  brought  the  colonies 
into  increasingly  closer  relations.  As  early  as  1690,  a 
congress  of  delegates  from  Massachusetts,  Connecticut, 
and  New  York  met  at  Manhattan  and  planned  an  expedi- 


EARLY  IMPULSES   TO   NATIONAL  UNITY.     13! 

tion  against  Canada.  Subsequently,  from  time  to  time, 
there  were  congresses  or  joint  conferences  of  governors  of 
the  colonies  to  consult  as  to  defence  against  Indians,  or 
to  arrange  for  quotas  of  men  and  money  for  attacks  on 
the  French  in  the  North.  Sometimes  these  conferences 
were  by  governors  alone,  but  often  they  were  accompanied 
by  deputies  from  their  colonies  who  were  usually  called 
commissioners.  Before  .  the  close  of  the  French  war, 
writers  and  politicians  had  advocated  the  idea  of  uniting 
all  the  colonies  under  one  royal  government.  At  the 
congress  of  commissioners  from  the  colonies  north  of  the 
Potomac,  which  met  at  Albany  in  1754  to  consider  ques- 
tions concerning  the  common  defence  and  to  treat  with 
the  Six  Nations  of  Indians,  and  other  tribes,  Franklin 
presented  his  plan  of  a  union  of  all  the  colonies.  This 
proposal  was  favorably  received  by  the  assembled  commis- 
sioners, and  directed  to  be  laid  before  each  of  the  col- 
onies. It,  however,  excited  opposition  on  both  sides  of 
the  Atlantic.  In  England  it  was  thought  too  democratic  ; 
in  America  that  it  inclined  too  much  to  prerogative.  The 
most  noticeable  feature  in  the  matter  is  the  evident  exist- 
ence of  a  body  of  public  opinion  of  imposing  weight  in 
its  favor;  and  that  the  feeling  and  conception  of  commu- 
nity of  interests  and  ideas  was  quite  general  in  the  colonies. 
We  see  in  this  the  beginnings  of  a  national  consciousness. 
The  growth  of  nationality  was  also  aided  by  the  early 
literature  of  the  colonies.  Moses  Coit  Tyler  in  his 
"  History  of  American  Literature,"  traces  its  gradual  ex- 
pansion. At  first  isolated,  provincial,  feeble,  and  timid, 
it  became  broader  in  its  tone  and  sympathies,  and  by 
1763,  had  in  a  degree  drawn  the  leaders  of  opinion  into 
intellectual  relations  with  one  another.  Already  each  sec- 
tion had  its  mental  tone.  Naturally  the  grim  analytical 
qualities  of  Calvinism  prevailed  in  New  England,  while 


132  POLITICS. 

in  Virginia  and  the  south  the  gay,  sensuous  side  of  the 
English  mind  was  represented,  though  everywhere  the 
conditions  of  pioneer  life  inclined  the  people  to  practical, 
rather  than  imaginative  writings.  Burke,  before  the  revo- 
lutionary war,  remarked  the  aptness  and  fondness  of  the 
Americans  for  legal  studies. 

The  newspaper  press  also  strengthened  the  bonds  of 
union.  In  1765  there  were  as  many  as  forty-two  journals 
in  the  different  provinces.  It  is  true  original  discussion 
did  not  occupy  much  of  their  space  ;  nevertheless,  even  with 
its  comparatively  feeble  limitations,  the  newspaper  press 
was  a  subtle  and  powerful  force  in  the  direction  of  nation- 
ality, because,  even  through  its  scanty  scraps  of  news,  it 
accustomed  the  people  to  interest  themselves  in  affairs 
beyond  the  narrow  bounds  of  their  own  co'ony.  The  col- 
leges were  also  potent  in  cultivating  largeness  of  view  and 
breadttf  of  sympathy.  Harvard,  Yale,  William  and  Mary, 
Princeton,  and  Columbia  were  already  firmly  established 
in  1763.  The  cultivation  of  the  physical  sciences  had 
also  made  some  progress  and  brought  its  votaries  more  or 
less  into  fellowship. 

In  1763  the  pressure  of  the  war  with  France  and  her 
Indian  allies  was  lifted  from  the  colonies  by  the  treaty  of 
peace  between  Englangl,  France,  and  Spain,  by  which 
England  obtained  Canada,  Florida,  Louisiana  to  the 
Mississippi,  and  Acadia.  This  event  is  justly  considered 
a  turning  point  in  our  history.  The  colonies  had  now 
become  self-dependent  ;  their  populations  largely  homo- 
geneous, and  when  the  assistance  of  the  mother  country 
ceased  to  be  necessary,  the  tie  which  held  them  to  her 
was  thenceforth  merely  a  traditional  one.  The  young 
nation  began  then  to  feel  its  own  individuality. 

At  this  time  a  broad  statesmanship  would  have  fostered 
the  autonomy  of  the  colonies.  England  has  been  wise 


EARLY   IMPULSES   TO    NATIONAL   UNITY.     133 

enough  since  our  Revolutionary  war  to  pursue  this  liberal 
policy  with  her  dependencies.  It  is  certainly  a  fact  that 
the  obstinacy,  the  folly,  and  the  malice  of  English  monarchs 
have  been  the  cause  of  the  acquisition  of  the  most  valu- 
able treasures  of  civil  liberty  in  both  hemispheres,  and  as 
Americans,  we  owe  it  largely  to  the  narrow  stupidity  of 
George  III.  that  the  occasion  was  given  for  the  rapid 
growth  of  a  nationalizing  and  free  spirit. 

It  is  not  necessary  to  repeat  the  familiar  story  of  the 
encroachments  of  the  home  administration  and  the  re- 
sistance of  the  colonies,  commencing  with  the  passage  of 
the  Grenville  Stamp  Act  in  1765,  followed  by  its  repeal 
in  the  next  year  ;  succeeded  by  the  Townshend  Bill  in 
1767,  "  granting"  duties  in  America  on  tea,  glass,  and 
other  articles,  and  i's  repeal  in  1770  as  to  all  duties  ex- 
cept tea.  The  preamble  of  the  Act  of  1767  said  that  "  it 
is  expedient  that  a  revenue  should  be  raised  in  your  maj- 
esty's dominions  in  America."  Lord  North  speaking  for 
the  King  asserted  that  it  must  be  retained  as  a  mark  of 
the  supremacy  of  parliament ;  and  it  finally  came  to  be 
true  that  the  controversy  raged  over  an  abstract  principle 
rather  than  a  practical  oppression.  Burke  significantly 
said  to  the  House  of  Commons  :  "It  is  the  weight  of 
the  preamble  of  which  you  are  so  fond,  and  not  the 
weight  of  the  duty,  that  the  Americans  are  unable  and 
unwilling  to  bear." 

The  seemingly  spontaneous  turning  of  the  people  of 
the  colonies  to  joint  counsel  and  resistance  through  con- 
gresses of  delegates,  and  the  sensitiveness  of  their  sympathy 
for  each  other  in  all  attacks  on  their  rights,  which  mani- 
fests itself  so  peculiarly  after  1761,  show  that  already  the 
latent  forces  of  nationality  were  present,  and  only  needed 
a  sufficiently  potent  cause  to  be  excited  to  vigorous 
action. 


134  POLITICS. 

As  to  the  cause,  the  more  one  considers  the  events  which 
so  rapidly  led  to  hostilities  the  more  one  is  impressed 
with  the  belief  that  it  lay  in  ideas  entirely.  The  actual 
specific  oppressions  were  trival,  but  the  general  mind  had 
grown  to  the  consciousness  of  independence  and  was  ripe 
and  ready  to  fall  away  from  the  parent  stem.  The  varia- 
tion of  the  American  stock  from  its  English  progenitors 
began  almost  from  the  beginning  of  colonization. 

After  the  treaty  of  1763  there  was,  regarding  separation 
from  the  mother  country,  only  a  question  of  time  and 
occasion. 

The  foregoing  brief  sketch  of  the  early  political  life  of 
the  colonies  is  not  intended  to  furnish  an  exhaustive  study 
of  the  subject,  but  rather  to  illustrate  the  general  proposi- 
tion already  sta'ed,  that  nation-making  is  the  fusion  and 
expansion  of  small  social  groups,  and  that  the  political 
structure  of  a  nation  consists  of  what  may  be  termed  pro- 
gressive circles  of  power,  which  represent  usually  the  orig- 
inal unit  and  the  various  stages  of  progress  between  the 
independence  of  this  unit  and  the  fully  organized  nation. 

The  history  of  the  political  institutions  of  all  the  great 
modern  states  will,  if  traced  with  sufficient  minuteness, 
show  that,  nothwithstanding  the  very  many  influences, 
external  and  internal,  which  have  shaped  the  development 
of  each  one,  the  general  outlines  of  growth  are  as  stated 
above.  It  is  only  because  in  the  case  of  the  United  States 
the  phenomena  of  growth  are  comparatively  so  fresh,  and 
the  records  of  our  colonial  life  are  in  many  respects  so 
copious  that  we  can  trace  the  various  forms  of  institu- 
tional growth  more  readily  and  certainly  than  in  the 
case  of  probably  any  other  nation. 


CHAPTER  X. 

CENTRIFUGAL  AND  CENTRIPETAL  FORCES. 

MEN  are  moved  by  inherent  impulses  to  dominate  over 
their  fellows  and  to  be  themselves  free  ;  and  when  associ- 
ated in  organized  societies,  as  superior  and  subordinate 
instrumentalities  of  government,  these  impulses  of  the 
individual  manifest  themselves  in  giving  to  the  societies 
in  question  the  tendency  to  enlarge  their  jurisdictions  and 
to  absorb  power.  Hence,  between  minor  jurisdictions  in 
the  state,  political  attraction  and  repulsion  are  always  act- 
ing, so  that  every  state  contains  within  itself  disintegrating 
forces,  as  well  as  nationalizing  tendencies 

The  people  of  a  nation  or  state  may  be  looked  at  from 
at  least  two  points  of  view,  the  social  and  the  political. 
Viewed  socially,  there  seems  to  be  general  intercommuni- 
cation ;  the  currents  of  business  and  pleasure  flow  un- 
checked through  the  body  politic.  A'.l  the  various  rela- 
tions of  life  act  and  re-act  among  the  individuals  over  all 
the  land. 

Yet  we  know  that  all  these  relations  are  marked  round 
with  jural  guards.  These  guards,  these  commands  ex- 
press the  will  of  the  state.  In  order,  therefore,  to  know 
how  this  will  is  ascertained  and  expressed,  we  must  also 
view  the  people  from  the  political  standpoint.  This  view 
discloses  to  us  the  fact  that  the  general  and  the  local  will  ex- 
press themselves  through  a  series  of  administrative  organs, 
and  that  the  people  are  divided  off  into  groups,  each  of 
which  manifests  its  particular  will  in  a  prescribed  way. 
The  great  fundamental  fact  remains,  however,  that  the 


136  POLITICS. 

state  consists  of  human  beings,  each  of  whom  is  by  nature 
a  political  as  well  as  a  moral  and  intellectual  being. 

In  considering  the  political  manifestations  of  men  we  - 
may,  provisionally  at  least,  exclude  from  contemplation 
all  the  secondary  motives  which  actuate  them  during  such 
manifestations  and  fix  our  attention  solely  upon  the  mas- 
ter motives  which  come  into  play  in  their  political  rela- 
tions. What  are  these  motives?  An  impulse  deeply  im- 
bedded in  human  nature  is  the  desire  of  each  individual 
when  brought  into  contact  with  his  fellows,  to  overcome 
and  subject  them  to  his  will.  Emerson  has  expressed 
this  idea  in  his  felicitous  way  in  his  essay  on  Power, 
when  speaking  of  the  new  comer  into  any  circle  of  men, 
he  compares  him  to  a  strange  ox  driven  into  the  pasture 
of  other  cattle:  "  There  is  at  once  a  trial  of  strength 
between  the  best  pair  of  horns  and  the  new  comer,  and  it 
is  settled  thencefore  which  is  the  leader."  The  innate  pro- 
pensity to  destroy  or  subjugate  is  only  turned  in  new 
directions  by  civilization.  It  does  not  always  manifest 
itself  as  among  rude  people  in  common  slaughter.  On 
the  contrary,  there  is  a  growing  disposition  to  mitigate 
physical  suffering.  We  read  with  horror  of  the  wholesale 
murder  and  rapine  of  ancient  war,  of  the  sacking  of  cities, 
and  the  selling  of  men,  women,  and  children  into  slavery  ; 
but  the  Englishman  of  to-day  learns  with  ill-disguised 
complacency  from  the  Times  that  his  fields  of  coal  and  his 
machinery  have  paralyzed  the  iron  industries  of  France, 
or  Germany  ;  and  the  American  is  rejoiced  to  think  that 
competition  with  our  acres  and  enterprise  is  undermining 
the  agriculture  of  Great  Britain,  although  misery  is  brought 
to  the  doors  of  thousands  ;  and  yet  both  think  themselves 
peaceful,  merciful  men. 

The  truth  is,  warfare  is  still  the  normal  condition  of 
humanity,  and  in  the  general  scheme  of  things  no  doubt, 


CENTRIFUGAL  AND  CENTRIPETAL  FORCES.  137 

necessarily  so.  Measureably,  however,  the  theatre  of 
contention  is  now  in  the  domain  of  opinions.  War  is 
only  an  ultimatum.  The  civilized  man  has  come  to  feel 
that  the  gratification  derived  from  subjecting  to  one's 
will  another's  sensations  and  thoughts  is  greater  than  that 
which  arises  from  holding  his  body  in  slavery.  The  poorest 
use  to  which  one  can  put  a  man  is  to  kill  or  enslave  him  ; 
there  is  a  keener  satisfaction  in  subjugating  his  rebellious 
mind.  This  disposition  to>dominate  over  others  is  not 
always  self-conscious.  More  often  it  is  an  unconscious  ac- 
tivity. It  is  a  force  which,  when  diverted  from  the  attempt 
to  appropriate  the  bodies  or  services  of  others,  attacks  their 
wills,  opinions,  imaginations,  desires,  and  seeks  to  en- 
thrall them  with  impalpable  chains.  The  destructive  and 
fighting  qualities  are  as  strong  now  as  at  the  beginning, 
but  they  have  been  supplemented  by  a  brain  growth  which 
deflects  and  distributes  them  over  a  greater  number  of 
objects  and  employs  more  intangible  and  more  indirect 
methods.  Let  men  be  united  in  bodies  for  any  purpose, 
social,  religious,  political,  even  benevolent,  and  this  pas- 
sion for  domination  becomes  so  active  that  it  inevitably 
develops  into  leadership  and  often  into  despotism. 
Moreover,  there  is  a  common  human  feeling  closely  akin 
to  the  desire  for  domination  and  constantly  in  collision 
with  it — the  desire  for  free  action.  It  is  the  action  and 
reaction  of  these  two  impulses  which  maintain  the  con- 
stant current  of  political  activities.  In  a  community 
where  the  forces  arising  from  these  two  desires  are  nearly 
equally  balanced,  there  are  present  the  conditions  of  a 
stable,  vigorous,  free  state ;  where,  however,  these  desires 
are  strong  in  a  few  and  indifferently  developed  in  the  bulk 
of  the  people,  power  will  tend  to  settle  in  the  hands  of  the 
few,  and  the  many  will  be  in  danger  of  governmental 
oppression. 


138  POLITICS. 

The  disposition  of  the  individual  to  grasp  and  wield 
power  is  transferred  to  the  political  body  of  which  he  may 
be  a  member.  Associate  men  together  in  corporate 
bodies,  whether  of  a  private  nature  for  gain  or  other  pur- 
poses, or  in  departments  of  government,  local  or  general, 
and  the  individual  disposition  to  control,  to  aggregate 
power,  is  merged  in  the  body,  so  that  there  is  the  same 
constant  tendency  in  the  body  as  in  the  individual  to  ex- 
tend the  scope  of  its  powers.  Out  of  this  perpetual  con- 
flict of  grasping  and  resisting  there  arises  in  the  course  of 
time  a  certain  practical  balancing  of  rights  and  duties, 
which  settles  into  maxims  of  action  and  becomes  the  posi- 
tive morality  of  the  community. 

In  this  way  in  England  were  worked  out  the  great 
maxims  of  personal  and  political  freedom.  Every  valu- 
able right  which  has  been  secured  and  fixed  in  constitu- 
tions, or  in  the  public  conscience,  has  had  to  be  fought  for 
and  won  by  hard  blows  :  freedom  in  the  exercise  of  re- 
ligion ;  freedom  of  the  press  and  of  speech  ;  the  right  to 
assemble  and  petition  for  redress  of  grievances  ;  the  right 
of  security  of  persons  and  papers  against  unreasonable 
search,  and  others.  There  is  reached  also  by  gradual 
steps  a  specialization  of  the  functions  of  government.  The 
more  distinct  tracing  of  the  lines  of  power  is  imposed,  as 
occasions  arise,  by  the  action  of  the  superior  will  in  the 
state,  upon  the  conflicting  individuals  and  departments. 

Unless  there  is  this  superior  will  at  some  point  in  the 
political  organism,  the  result  will  surely  be  either  disin- 
tegration or  the  violent  subjugation  of  the  weaker  parts  by 
the  stronger.  It  follows  naturally  from  the  structural 
formation  of  every  state, — because  it  is  really  a  congress 
of  units,  of  departments,  of  lesser  administrative  circles, — 
that  there  is  this  latent  tendency  to  disintegration.  In 
certain  stages  of  state  growth  the  external  or  even  internal 


CENTRIFUGAL  AND   CENTRIPETAL   FORCES.    139 

circumstances  may  be  such  that  the  disintegrating  influence 
becomes  predominant.  This  is  prominently  illustrated 
in  the  histories  of  Italy  and  Germany.  Many  circum- 
stances, geographical  and  other,  may,  on  the  other  hand, 
give  full  play  to  the  inherent  disposition  of  cognate  peoples 
to  fuse  into  nations  with  a  common  political  organization. 
This  we  have  seen  in  France,  Spain,  England,  and  the 
United  States. 

Whenever  a  political  organism  has  become  sovereign, 
that  is,  has  reached  a  point  of  development  where  there 
is  one  will  which  has  no  superior,  no  matter  how  many 
subordinate  developments  there  may  be  within  the  organ- 
ism, then,  if  it  joins  itself  to  another  sovereign  state  or  to 
several  others  in  order  to  effect  a  common  political  object, 
a  conflict  is  sure  to  begin ;  the  dominating  and  counter 
resisting  forces  begin  to  act,  and  it  is  merely  a  question  of 
time  when  the  league  will  break  to  pieces  or  become  a 
consolidated  state.* 

It  is  not  strange  that  confederacies  have  been  failures. 
Human  nature  is  arrayed  against  them.  In  the  long  run 
two  wills  acting  in  conjunction  cannot  remain  entirely 
independent.  It  almost  goes  without  saying  that  the 
confederation  of  the  British  Colonies,  entered  into  in 
July,  1778,  could,  in  the  nature  of  things,  survive  but  a 
very  short  time.  It  is  a  mark  of  the  sacrificing  patriotism 
of  the  people  that  it  lasted  through  the  war.  The  espe- 
cially interesting  feature  of  our  history  at  that  period,  from 

*  It  is  significant  that  the  league  was  the  last  phase  of  the  gov- 
ernmental history  of  independent  Greece.  The  Greeks  appear  to 
have  taken  the  first  step  from  the  city  or  tribal  government  toward 
a  national  government.  At  the  point  of  transition,  when  there  ap- 
peared to  be  wanting  only  time  to  bring  about  political  consolida- 
tion, the  course  of  their  independent  political  life  was  interrupted 
by  the  conquest  of  the  Romans. 


I4O  POLITICS. 

a  political  point  of  view,  is,  the  actual  and  theoretical  at- 
titude of  the  colonies  to  one  another. 

Up  to  the  outbreak  of  hostilities  with  the  mother 
country,  the  different  colonies  had  not  certainly  been 
sovereign  states.  Great  Britain  was  the  sovereign  and 
the  colonies  were  subordinate  parts  of  the  kingdom  ;  yet 
they  were  in  a  degree  independent  parts.  They  were 
dependencies,  not  parts,  as  .a  county  or  shire  is  a  part  of 
the  kingdom.  When,  therefore,  they  cut  the  tie  which  -. 
bound  them  to  the  common  superior,  they  were  sovereign  ! 
as  to  one  another.  The  articles  of  confederation  were  an 
agreement  between  States  ;  the  action  of  the  central  con- 
gress was  upon  the  States  and  not  directly  upon  the  in- 
dividuals within  the  States.  Here,  as  has  often  been 
pointed  out  and  as  the  framers  of  the  subsequent  consti- 
tution clearly  understood,  was  the  fatal  defect. 

When  afterwards  this  confederacy  broke  down,  the 
problem  which  the  constitutional  convention  attempted  to 
solve  was  to  establish  a  working  frame  of  government  in- 
volving two  leading  ideas,  State  sovereignty  and  at  the 
same  time  United  States  sovereignty.  Theoretically,  the 
several  States  were  sovereign  ;  they  passed  directly  from 
the  dependent,  colonial  condition  into  the  condition  of  the 
independent  state.  The  social  fact,  however,  was  that  the 
whole  people  constituted  a  nation.  They  were  not,  it  is 
true,  really  conscious  of  their  nationality ;  this  conscious- 
ness came  by  degrees  later.  We  may  call  them  an 
embryo  nation  ;  at  least  all  the  elements  of  a  nation 
were  there.  Politically  they  were  parcelled  off  into  States. 
There  was  still  a  large  fund  of  colonial  pride  which 
merged  into  State  pride,  but  no  doubt  the  apprehension 
which  turned  the  greater  number  from  the  national  idea 
was  the  belief  that  a  strong  central  government  would 
crush  out  State  autonomy,  and  especially  that  there  was 


CENTRIFUGAL  AND   CENTRIPETAL   FORCES.    141 

serious  danger  that  the  executive  might  gradually  grow 
into  something  akin  to  a  monarchy.  We  must  remem- 
ber that  although  at  that  period  parliamentary  government 
was  firmly  established  in  England,  yet  that  personal  gov- 
ernment was  also  strong  ;  and  there  was  no  adequate  surety 
to  the  general  mind  that  kingly  usages  might  not  gradually 
drift  back  towards  the  old  pretensions  of  divine  right.  Then 
again,  the  small  States  were  jealous  of  and  feared  the 
large  ones.  The  preponderating  influences  were  in  favor 
of  an  alliance  of  the  States,  rather  than  their  immediate 
fusion. 

It  is  said  that  the  fathers  of  the  Republic  invented  a 
new  kind  of  government,  a  federal  state,  founded  upon  a 
written  constitution.  However  true  this  may  be,  we  are 
now  able  to  assert  that  in  so  far  as  they  violated  funda- 
mental principles  in  government  their  work  has  not  been 
interpreted  in  all  respects  as  they  supposed  it  would  be. 
The  intent  of  the  constitution  did  certainly  violate  the 
fundamental  principle  that  two  wills  cannot  at  the  same  time 
be  sovereign  in  the  same  state.  The  conflict  introduced 
at  the  very  beginning  was  between  the  two  wills  ;  the  one 
of  the  State  and  the  other  of  the  nation.  The  key  to  our 
whole  national  political  history  since  1789  is  here, 


CHAPTER    XI. 

THE    MAKERS    OF   CONSTITUTIONAL    LAW. 

WHEN  we  have  determined  with  reference  to  any  given 
nation  where  sovereignty  is  lodged,  we  should  next  inquire 
how  does  the  sovereign  express  his  will  ?  We  shall  find 
that  it  is  usually  in  two  ways,  one  is  in  the  establishment 
of  a  form  of  government  and  organs  of  state  power,  and 
also  frequently  of  fixed  rules  of  state  action  ;  this  may  be 
styled  the  permanent  will  of  the  nation.  The  other  is 
manifested  in  the  statutes  and  ordinances  enacted  from 
time  to  time  by  the  law-making  organs  of  the  government. 
This  may  be  styled  the  occasional  will  of  the  nation.  If 
there  is  a  written  constitution  which  can  be  modified  only 
in  a  specified  way,  it  constitutes  this  permanent  will.  Such 
an  instrument  furnishes  a  written  enumeration  of  those 
features  of  the  political  system  which  it  is'  desired  shall 
remain  unchanged  except  by  a  formal  act  of  the  ultimate 
sovereign  in  the  way  pointed  out  in  the  instrument  itself. 
There  is  no  difficulty  under  these  circumstances  in  ascer- 
taining what  is  this  permanent  will.  But  in  those  in- 
stances where,  what  is  called  the  constitution  is  unwrit- 
ten, there  is  more  or  less  vagueness  in  its  definition.  We 
can  only  say  there  are  certain  features  in  the  governmental 
system  which  the  bulk  of  the  people  consider  ought  to  be 
permanent,  and  a  change  in  which  they  would  look  upon 
as  revolutionary. 

Such  a  constitution  consists  of  provisions  for  the 
national  government,  as,  for  instance,  the  king  or  execu- 


THE  MAKERS  OF  CONSTITUTIONAL  LAW.      143 

tive  head,  the  houses  of  the  legislature,  whether  two  or 
more,  including  their  internal  structure  and  relation  to 
each  other,  and  the  courts  of  justice.  It  provides  also  for 
the  fixed  institutions  pertaining  to  the  local  jurisdictions, 
as  those  of  provinces,  shires,  counties,  towns,  or  town- 
ships. It  may  likewise  include  certain  established  laws 
and  even  maxims  concerning  personal  rights,  as  that  there 
shall  not  be  taxation  without  representation,  that  jury  trial 
shall  be  preserved,  that  private  property  shall  not  be  taken 
for  public  use  without  just  compensation,  and  the  like. 
The  occasional  will  of  the  nation  finds  its  expression,  as 
already  intimated,  in  the  statutes  or  ordinances  that  may 
be  enacted  from  time  to  time  by  some  organ  or  organs  of 
the  government  established  for  that  purpose.  Whether 
the  expression  of  national  will  be  in  a  constitution  or  a 
statute,  they  are  relatively  to  each  other  only,  permanent 
or  occasional.  It  might  be  said,  perhaps  with  greater 
accuracy,  that  the  only  difference  is  that  the  constitution 
is  more  permanent  than  the  law  enacted  under  it,  but 
both  are  nevertheless  expressions  which  are  subject  to 
changes.  It  may  be  that  the  same  organs  of  the  govern- 
ment which  pass  the  ordinary  legislation  have  also  the 
power  to  amend  the  constitution.  This  is  the  case  in  the 
German  Empire.  Nevertheless  there  the  two  wills  are 
still  distinct  and  must  manifest  their  expressions  separately, 
so  that  it  may  occur  that  the  occasional  will  conflicts  with 
the  permanent  will.  For  example,  while  it  lies  with  the 
Emperor,  the  Bundesrath,  and  the  Reichstag  conjointly 
to  amend  the  constitution,  they  may  also  together  pass 
an  ordinary  law.  Each,  however,  is  a  separate  expression. 
The  ordinary  statute,  if  in  conflict  with  the  constitution, 
falls  to  the  ground  ;  it  does  not,  because  passed  by  the  same 
organs,  operate  as  an  amendment  or  repeal  of  the  funda- 
mental law.  On  the  other  hand,  that  body  of  statutes 


144  POLITICS. 

and  old  usages  which  publicists  designate  as  the  British 
Constitution,  may  be  changed  by  an  act  of  Parliament. 
In  the  United  States  the  organs  which  express  the  occa- 
sional will  of  the  nation  are  more  strictly  limited  in  power, 
and  whenever  the  statute  conflicts  with  the  written  consti- 
tution it  is  void. 

In  a  despotic  state  the  power  to  express  the  permanent 
as  well  as  the  occasional  will  resides  in  the  same  person, 
the  monarch  ;  but  nevertheless  there  can  hardly  be  found 
a  polity  so  primitive  but  that  there  is,  at  least,  a  substantial 
body  of  customs  which  have  consolidated  into  the  simili- 
tude of  constitutional  law  and  which  the  most  despotic 
ruler  does  not  invade.  These  honored  usages  really  indi- 
cate the  permanent  will  of  the  community.  In  the  com- 
plex modern  states  this  permanent  will  expresses  itself,  as 
already  suggested,  in  some,  in  written  constitutions  ;  in 
others  in  the  departments  of  government  and  in  maxims 
of  public  and  private  law,  established  perhaps  at  remote 
periods  and  changed,  added  to,  and  modified  from  time 
to  time  by  the  sovereign,  until  now  they  are  accepted  by 
the  nation  as  stable.  In  Great  Britain  is  the  most  marked 
instance  of  the  permanent  will  of  a  nation,  gradually  hard- 
ening as  it  were,  into  a  most  complicated  constitutional 
structure.  Russia  is  a  more  modern  instance  of  a  land 
where,  theoretically,  one  arid  the  same  man  may  express 
both  the  permanent  and  the  occasional  will  of  the  com- 
munity, and  yet  where,  in  fact,  an  elaborate  governmental 
scheme  has  grown  to  express  a  national  will  that  is  prac- 
tically permanent.  In  most  countries  at  present,  how- 
ever, there  are  written  constitutions  which  express  the 
permanent  national  will. 

P  From  the  foregoing  considerations  we  reach  the  con- 
jclusion  that  when  we  determine,  under  any  system,  the 
/person  or  persons  competent  to  amend  the  constitution, 

J 


THE   MAKERS   OF   CONSTITUTIONAL  LAW.      145 

or  change  the  form  of  government,  that  is,  with  power  to  ? 
express  the  permanent  will,  we  have  defined  the  sovereign 
in  the  nation  and  have  fixed  the  source  of  constitutional 
law. 

According  to  the  provisions  of  Article  V.  of  the  consti- 
tution of  the  United  States,  the  power  to  amend  that  in- 
strument is  given  to  certain  determinate  bodies,  and  in 
these  bodies  rest  the  sovereignty  of  the  nation.  In  the 
United  States,  the  sovereign  is  not  the  whole  body  of  the 
people  nor  the  whole  body  of  the  voters  of  the  several 
States.  These  voters  are  the  sovereign-makers,  and  can 
act  only  when  called  upon  by  the  proper  authority,  and 
when  they  vote  in  groups,  in  districts  provided  by  law. 

"  We,  the  people  of  the  United  States,"  who  are  re- 
ferred to  in  the  preamble  of  the  Constitution  as  establish- 
ing it  for  the  purposes  of  a  more  perfect  union  and  to 
secure  other  advantages,  were  not  all  the  people  of  the 
thirteen  original  colonies,  nor  is  it  even  clear  that  they 
were  a  majority  of  them.  Each  state  held  a  convention, 
the  delegates  to  which  were  elected  by  a  majority  of  votes. 
The  voters  were  only  those  who  possessed  the  neces- 
sary property  or  other  qualifications.  They  did  not 
themselves  say  yea  or  nay  ;  they  merely  authorized  certain 
delegates  to  speak  for  them.  No  doubt  the  way  each 
delegate  \\ould  vote  was  largely  determined  by  the  pref- 
erences of  his  constituents.  Still,  in  a  general  sense,  he 
was  a  free  agent.  Assuming,  however,  that  in  the  con- 
ventions each  delegate  voted  as  those  desired  who  voted 
for  him  at  his  election,  an  analysis  would  show  that,  in 
point  of  fact,  a  bare  majority  of  the  qualified  electors  ac- 
cepted the  instrument.  In  some  instances,  as  in  New 
York,  the  convention  finally  decided  contrary  to  the  ex- 
pression of  opinion  at  the  polls.  In  that  State  there  were 
sixty-five  delegates,  of  whom  forty-six  were  elected  by  the 
7 


146  POLITICS. 

party  hostile  to  the  Constitution,  and  yet  at  the  end  it  was 
ratified  by  a  majority  of  three.  In  truth,  the  voters  of 
all  States  delegated  the  power  of  acceptance  or  rejection  to 
their  conventions,  and  abandoned  all  control  over  the 
question. 

The  generalization,  then,  "We,  the  people,"  must 
really  be  restricted  to  the  several  organized  political 
bodies  consisting  of  representatives — theoretically,  of  the 
whole  body  of  the  people — but,  in  reality,  of  the  majori- 
ties or  pluralities  of  the  several  political  districts  which 
elected  them.  The  whole  body  of  the  people  was 
divided,  for  political  purposes,  into  States  ;  these  States 
were  subdivided  into  districts  and  the  individual  voter  was 
nobody,  or,  rather,  he  was  somebody  only  when  he  spoke 
by  his  vote  through  the  instrumentalities  of  the  particular 
group  to  which  he  was  attached,  and  in  which  he  was 
politically  absorbed.  Each  group  had  upon  that  subject, 
a  will,  which  was  expressed  by  the  majority  vote.  It  is 
true  now,  therefore,  as  it  was  in  primitive  days,  that  for 
what  may  be  called  political  expression,  the  individual  is 
nobody.  His  group,  his  township,  his  county,  his  State, 
may  speak,  may  act.  He  alone  is  merely  a  constituent, 
an  atom,  which  may  or  may  not  affect  the  will  of  the 
group  to  which  he  belongs.  The  constitution  of  the 
United  States  is  a  written  command  or  law,  adopted  by 
the  conventions  of  the  original  thirteen  States.  It  ex- 
presses at  the  present,  or  at  any  given  time,  the  will  of 
just  that  number  of  voters  within  the  limits  of  the  United 
States,  who  can  elect  a  sufficient  number  of  representatives 
authorized  to  amend  it.  This  year  every  one  in  the 
country  may  be  content  with  the  fundamental  law  as  it 
stands,  but  possibly  next  year  there  may  be  a  movement 
for  change  ;  this  can  be  brought  about  in  two  ways,  either 
by  vote  of  two-thirds  of  both  houses  of  Congress,  propos- 


THE   MAKERS  OF  CONSTITUTIONAL  LAW.       147 

ing  amendments,  or  by  two-thirds  of  the  State  legislatures 
applying  to  Congress  to  call  a  convention. 

Let  us  suppose  that  the  first  method  is  adopted,  that 
the  matter  of  the  proposed  amendments  is  agitated  suffici- 
ently long  in  advance  so  that  members  of  Congress  are 
elected,  as  for  or  against  them,  and  that  two-  thirds  of  both 
houses  are  favorable  to  the  proposition.  It  follows,  that 
the  proposal  emanates  from,  that  the  machinery  is  set 
in  motion  by,  the  sum  of  the  majorities  in  two-thirds,  or, 
in  addition,  the  number  above  two-thirds  of  the  congres- 
sional districts  of  the  nation  which  may  be  favorable. 
Can  we  consider  these  majorities  the  ultimate  sovereign 
in  the  nation  ?  No ;  because  it  is  necessary  before  the 
amendments  are  adopted  that  they  shall  be  ratified  by  the 
legislatures  of  three-fourths  of  the  States,  or  by  conventions 
in  three-fourths  of  them.  Neither  can  we  say  that  the 
majorities  of  the  several  legislative  districts  which  elected 
the  members  who  voted  for  the  ratification,  are,  together, 
the  sovereign.  A  sovereign  must  be  single  or  a  corporate 
body,  must  be  an  actual  or  legal  person,  who  can  will  to 
do,  or  not  to  do,  and  can  make  the  will  effective.  The 
voters  who  elect  members  to  conventions  or  legislative 
bodies,  it  is  true,  exercise  their  individual  wills  in  the 
choice  they  make  ;  but,  having  done  so,  they  disappear. 
They  are,  in  truth,  only  makers  of  the  sovereign.  They 
come  upon  the  scene  at  stated  times  and  then  vanish. 
In  the  interim  they  are  merely  subjects  of  the  superior 
power.  It  is  in  this  sphere  of  making  and  unmaking  the 
sovereign  in  representative  governments  that  political  par- 
ties act  as  we  shall  see  later. 

Strictly  speaking,  it  is  inaccurate  to  say  of  a  representa- 
tive republic  that  the  people  are  sovereign.  While  they 
can,  by  moral  influences,  by  the  use  of  all  those  methods 
of  persuasion  which  bind  the  consciences  of  men,  influence 


148  POLITICS. 

their  representatives  to  carry  out  their  wishes,  yet  so  long 
as  there  are  no  penalties,  other  than  social  or  moral  ones, 
attached  to  violations  of  promises  or  expectations,  it  cannot 
be  correctly  asserted  that  sovereign  power  resides  with  the 
voters. 

It  is  assumed  that  the  representative  will  carry  out  the 
will  of  his  constituents  ;  ordinarily,  in  a  general  sense, 
he  does ;  but  he  is  not  obliged  to  do  so,  and  frequently 
does  not  do  it.  Often  questions  arise  which  were  not 
anticipated  before  the  election.  In  such  an  eve>nt,  the 
representative  must  exercise  his  independent  judgment. 
If  he  is  the  mere  mouth-piece  of  his  electors,  then,  cer- 
tainly, he  is  the  servant,  and  not  the  master.  He  goes 
to  the  legislature  to  deliberate,  and  to  determine  as  his 
judgment  is  convinced.  At  least  such  is  the  accepted 
theory.  Actually,  in  the  point  of  view  here  suggested, 
he  is  one  of  a  number  who  help  to  shape  and  express, 
through  certain  established  channels,  and  according  to 
certain  forms,  the  will  of  the  particular  political  group, 
of  which  the  legislature  is  a  part.  The  fifth  article  of  the 
Constitution  of  the  United  States  provided  that  amend- 
ments might  be  made  in  the  methods  above  indicated,  with 
the  proviso  that  no  amendment  could  be  made  prior  to 
1 808,  which  prevented  the  importation  of  slaves,  or  which 
imposed  a  capitation,  or  other  direct  tax,  otherwise  than 
in  proportion  to  the  census  enumeration  ;  and  with  the 
i  further  important  proviso,  that  no  State,  without  its  con- 
sent, should  be  deprived  of  its  equal  suffrage  in  the 
Senate.  These  provisos  are,  however,  instances  of  a 
sovereign  attempting  to  limit  by  law  its  own  authority, 
which  it  cannot  do  and  remain  sovereign.  They  are  to  be 
regarded  simply  as  pledges  on  the  part  of  the  sovereign 
that  it  will  refrain  from  certain  acts  within  a  certain  time. 
The  nation,  it  is  true,  by  common  consent  or  acquies- 


THE   MAKERS   OF   CONSTITUTIONAL   LAW. 


cence,  may  change  the  form  of  its  government.  The 
people  of  the  United  States  might  substitute  an  aristoc- 
racy or  any  other  form  for  the  existing  republican  gov- 
ernment. The  change  might  come  about  peacefully  or 
through  war.  Such  a  fundamental  change,  or  revolution, 
would  be  extra-constitutional,  or  extra-legal,  and  therefore 
lies  without  that  field  of  political  inquiry,  which  assumes, 
as  a  starting-point,  some  government  defacio.  From  this 
point  of  view  we  can  consider  alterations  in  the  form  of 
government  only  under  the  limitation  that  the  change  be 
peaceful  and  normal  ;  that  is,  either  through  methods  pre- 
viously provided,  or  through  the  gradual  steps  of  natural 
political  growth.  It  is  idle,  therefore,  to  discuss  the 
right  of  revolution  as  a  political  question.  It  can  be 
examined  and  discussed  only  as  a  question  of  private 
morals.  Every  person  who  takes  part  in  a  revolution 
must  settle  with  his  own  conscience,  if  he  succeeds, 
whether  the  end  attained  has  justified  the  bloodshed  or 
misery  it  has  occasioned  ;  and  if  he  fails,  he  must  settle 
with  the  penal  laws  that  have  been  violated.* 

*  Although  a  political  revolution  is  an  extra-legal  proceeding, 
and,  therefore,  may  not  properly  be  considered  in  the  discussion  of 
the  nature  and  organization  of  the  state,  yet,  by  reason  of  its  im- 
portance as  marking  certain  crises  in  political  progress,  it  should 
not  be  entirely  left  out  of  view  in  this  connection.  In  a  political 
revolution  we  observe  the  operation  of  a  force,  or  forces,  in  a  man- 
ner not  provided  for  by  the  laws  or  the  constitution,  through 
which  the  form  of  the  government  is  changed,  or  the  power  of  the 
state  is  transferred  to  a  different  person,  or  to  a  different  body  of 
persons  from  that  hitherto  legally  exercising  this  power.  It  need 
not  be  attended  by  a  violent  social  agitation,  or  occupy  a  conspicu- 
ous place  in  history.  The  political  organization  of  society  tends 
TO  become  rigid  ;  and  when  it  has  ceased  to  be  an  adequate  ex- 
pression of  the  changed  political  ideas  of  the  nation,  and  refuses  to 
yield  to  lawful  means  of  change,  or  is  incapable  of  being  modified 


I  JO  POLITICS. 

An  evolutionary  change  may  be  such  as  has  taken 
place,  in  large  part,  in  the  British  system,  and  in  a  de- 
gree goes  on  in  every  government,  even  in  our  own.  In 
the  sovereign  nation  there  is  no  legal  limitation  upon  its 
right  to  have  such  form  of  government  as  it  pleases,  and 
to  change  it  as  often  as  it  pleases.  To  get  upon  firm 
ground  in  analytical  politics,  we  must  eliminate  morals 
altogether ;  morals  come  into  consideration  only  when 
seeking  to  know  how  the  state  ought  to  will,  and  how  to 
act  in  any  given  contingency. 

Our  American  nation,  through  certain  existing  political 
groups  called  States,  which  acted  in  a  normal  manner 
through  their  conventions,  accepted  the  Constitution,  and 
in  this  Constitution  pointed  out  a  method  of  amendment 
and  the  limitations  upon  amendment.  The  nation  has  im- 
posed upon  itself  this  form  of  government ;  and,  so  long 
as  it  adheres  to  it,  can  only  change  it,  voluntarily,  in  the 
way  provided  in  the  pact. 

The  initial  question  is,  who  has  the  power  to  change 
or  amend  this  form  of  government  ?  As  provided  in  the 
fifth  article,  it  is  lodged  in  two-thirds  of  both  houses 
of  Congress,  who  can  propose  the  amendment ;  and  in 
three-fourths  of  the  legislatures,  or  conventions,  as  the 
case  may  be,  of  the  several  States,  who  can  accept  it. 
The  fifteen  amendments  which  have  been  added  to  the 

by  methods  provided  by  law  so  as  to  meet  the  actual  political 
demands,  the  adjustment  of  political  forms  to  meet  the  demands 
will  be  brought  about  through  extra-legal  means,  or,  in  other 
words,  through  revolution.  Burke,  in  his  Reflections  on  the  Revo- 
lution in  France,  says:  "  The  question  of  dethroning,  or,  if  these 
gentlemen  like  the  phrase  better,  '  cashiering  kings/  will  always 
be,  as  it  always  has  been,  an  extraordinary  question  of  state,  and 
wholly  out  of  the  law  ;  a  question,  like  all  other  questions  of  state, 
of  dispositions,  and  of  means,  and  of  probable  consequences,  rather 
than  of  positive  rights." 


THE   MAKERS   OF   CONSTITUTIONAL   LAW.      !$! 

Constitution  have  all  been  proposed  by  Congress,  and 
ratified  by  the  requisite  number  of  State  legislatures. 
There  never  has  been  occasion  to  call  a  general  conven- 
tion for  the  purpose  of  amendment,  as  was  expected  and 
hoped  would  be  the  case  by  very  many  of  those  who  re- 
luctantly accepted  the  original  instrument. 

We  can  therefore  assert  that  in  the  United  States,  what 
may  be  called  the  ultimate  or  primary  sovereign,  is  a  col- 
legiate sovereign,  made  up  of  two-thirds  of  the  two  houses 
of  Congress,  and  three-fourths  of  the  legislatures  or  con- 
ventions of  the  States. 

In  the  German  empire,  amendments  to  the  constitution 
can  be  made  only  by  legislative  enactment.  If  there 
were  power  in  each  chamber  of  the  legislature  to  initiate 
laws,  we  could  properly  say  that  the  two  together  were 
the  sovereign  in  the  empire  ;  but  as  this  power  is  lodged 
elsewhere,  and  the  legislature  is  only  a  consenting  body, 
it  occupies  merely  a  negative  position.  The  laws,  and 
also  constitutional  amendments,  are  proposed  by  the 
Emperor,  and  submitted  to  the  Bundesrath  or  Federal 
Council,  or  are  prepared  by  the  latter  body  with  his  con- 
sent. The  proposed  enactment,  after  being  first  adopted 
by  the  Bundesrath,  is  by  it  submitted  to  the  Reichstag, 
the  lower  house  of  the  parliament.  If,  however,  there 
are  fourteen  votes  against  the  proposition  in  the  Bundes- 
rath it  is  immediately  rejected.  If,  on  the  contrary,  it  is 
approved,  it  must  also  have  the  approbation  of  the  Reich- 
stag by  a  majority  vote.  It  is  then  published  by  the 
Emperor.  There  is,  however,  a  provision  that  when  by  the 
terms  of  the  constitution  fixed  rights  of  individual  states 
are  established  in  their  relation  to  the  whole,  they  can  be 
altered  only  with  the  consent  of  the  state  which  is  imme- 
diately concerned.  It  thus  appears  that  the  power  re- 
sides in  the  Emperor  to  prevent  forever  any  constitutional 


I  $2  POLITICS. 

change,  while,  if  he  desires  alteration  in  any  particular, 
it  can  be  accomplished  only  with  the  consent  of  both 
branches  of  the  legislature.  As  the  test  of  sovereignty 
is  the  ability  to  command,  to  will,  it  is  necessarily  affirm- 
ative, and  not  a  mere  power  of  negation ;  and  as  the 
amendment  cannot  be  made  without  a  combination  of 
the  will  of  the  Emperor,  of  the  Bundesrath  and  of  the 
Reichstag,  we  may  affirm  that  the  Imperial  sovereign  is 
collegiate,  consisting  of  these  three,  and  in  certain  special 
cases,  where  certain  fixed  rights  of  individual  states  are 
to  be  affected,  we  must  add  to  this  collegiate  primary 
sovereign  the  specially  concerned  state. 

In  France,  the  constitution  of  1875  provides  that  the 
two  chambers,  the  senate  and  the  assembly,  by  majority 
vote,  may,  either  spontaneously,  or  upon  the  suggestion 
of  the  President  of  the  Republic,  declare  that  amend- 
ments to  the  constitution  ought  to  be  made.  (If  the  pre- 
vailing construction  of  this  clause  is  not  misunderstood, 
it  is  that  this  declaration  is  to  the  effect  that  particular 
amendments  are  needed,  not  a  general  affirmation,  that 
the  instrument  should  be  amended.)  Thereupon  the  two 
chambers  unite  themselves  into  one  body,  and  proceed 
to  the  revision,  which  can  be  accomplished  only  by  a 
majority  vote  of  the  united  body. 

In  the  Austro-Hungarian  Empire,  the  constitution 
emanated  from  the  Emperor,  by  letters  patent  of  October 
20,  1860,  and  was  somewhat  modified  in  1867.  It  can 
be  amended  only  by  the  vote  of  two-thirds  of  those  present 
in  the  upper  and  lower  houses  of  the  legislature,  it  being 
necessary  that,  in  the  lower  house  at  least,  half  of  the 
members  shall  be  present. 

In  Great  Britain,  where  there  is  no  written  constitution, 
the  sovereign  is  the  collective  one  of  the  two  houses  of 
parliament,  in  conjunction  with  the  monarch.  The  ac- 


THE  MAKERS   OF  CONSTITUTIONAL  LAW.      l$$ 

tual  devolution  of  the  political  system  of  that  country  has 
given  the  paramount  authority  to  the  house  of  commons, 
in  practice.  Nevertheless  as  the  assent  of  the  house  of 
lords  and  the  monarch  are  both  necessary  to  any  change 
of  the  general  system  of  laws  and  usages  which  the  British 
mind  contemplates  as  the  constitution,  they  must  be  con- 
sidered as  possessing  a  portion  of  the  sovereignty. 

The  foregoing  analysis  indicates  where  to  look  in  any 
system  of  government  for  the  ultimate  sovereign,  the 
immediate  source  of  constitutional  law.  The  person,  or 
the  body  of  persons,  often  designated  as  sovereign,  is 
not  always  the  real  bearer  of  power.  In  every  nation, 
this  final  power  of  change  is  lodged  somewhere.  Tech- 
nically, it  is  with  the  person,  or  persons  who  command 
what  the  form  of  government  shall  be,  and  who,  when  it 
is  once  established,  have  power  to  effect  a  change.  The 
motive  power,  however,  behind  the  carriers  of  sovereignty, 
in  a  popular  government,  is  public  opinion,  as  it  finds 
expression  at  the  polls  on  election  days,  and  through 
the  press,  and  on  the  platform  ;  but  as  already  suggested, 
we  must  carefully  distinguish,  in  discussion,  the  actual 
legal  sovereign,  from  the  individuals  who  act  in  constitut- 
ing the  sovereign,  and  who  are  represented  by  the 
sovereign.* 

*  Holland,  in  The  Elements  of  Jurisprudence,  p.  249,  indicates 
what  from  the  British  point  of  view,  are  regarded  as  the  essentials 
of  a  national  constitution.  He  says  :  "  It  prescribes  the  order  of 
succession  to  the  throne  ;  or,  in  a  republic,  the  mode  of  electing  a 
president.  It  enumerates  the  prerogatives  of  the  king,  or  other 
chief  magistrate.  It  regulates  the  composition  of  the  council  of 
state,  and  of  the  upper  and  lower  houses  of  the  assembly,  when 
the  assembly  is  thus  divided  ;  the  mode  in  which  a  seat  is  acquired 
in  the  upper  house,  whether  by  succession,  by  nomination  or  by 
tenure  of  office  ;  the  mode  of  electing  the  members  of  the  house 
of  representatives  ;  the  powers  and  privileges  of  the  assembly  as  a 
7* 


154  POLITICS. 

whole,  and  of  the  individuals  who  compose  it  ;  and  the  machinery 
of  law-making.  It  deals  also  with  the  ministers,  their  responsi- 
bility and  their  respective  spheres  of  action  ;  the  government  offices 
and  their  organization  ;  the  armed  forces  of  the  state,  their  con- 
trol and  the  mode  in  which  they  are  recruited  ;  the  relation,  if  any, 
between  church  and  state  ;  the  judges  and  their  immunities  ;  local 
self  government  ;  the  relations  between  the  mother  country  and  its 
colonies  and  dependencies.  It  describes  the  portions  of  the  earth's 
surface  over  which  the  sovereignty  of  the  state  extends,  and  defines 
the  persons  who  are  subject  to  its  authority.  It  comprises,  there- 
fore, rules  for  the  ascertainment  of  nationality,  and  for  regulating 
the  acquisition  of  a  new  nationality  by  'naturalization.'  It  de- 
clares the  rights  of  the  state  over  its  subjects  in  respect  of  their 
liability  to  military  conscription,  to  service  as  jurymen,  and  other- 
wise. It  declares,  on  the  other  hand,  the  rights  of  the  subject 
to  be  assisted  and  protected  by  the  state,  and  of  that  narrower 
class  of  subjects  which  enjoys  full  civic  rights  to  hold  public  offices 
and  to  elect  their  representatives  to  the  assembly,  or  parliament, 
of  the  nation." 

As  to  the  nature  of  constitutional  law,  Austin  remarks  (Vol.  I.  p. 
73),  that,  "  in  a  country  governed  by  a  monarch,  constitutional  law 
is  extremely  simple  ;  for  it  merely  determines  the  person  who  shall 
bear  the  sovereignty.  In  a  country  governed  by  a  number,  con, 
stitional  law  is  more  complex  ;  for  it  determines  the  persons,  or  the 
classes  of  the  persons  who  shall  bear  the  sovereign  powers  ;  and 
it  determines,  moreover,  the  mode  wherein  those  persons  shall 
share  those  powers.  In  a  country  governed  by  a  monarch,  con- 
stitutional law  is  positive  morality  merely  :  in  a  country  governed 
by  a  number,  it  may  consist  of  positive  morality,  or  of  a  compound 
of  positive  morality  and  positive  law. 

"  Administrative  law  determines  the  ends  and  modes  to  and  in 
which  the  sovereign  powers  shall  be  exercised  :  shall  be  exercised 
directly  by  the  monarch  or  sovereign  number,  or  shall  be  exercised 
directly  by  the  subordinate  political  superiors  to  whom  portions  of 
those  powers  are  delegated  or  committed  in  trust.  " 


CHAPTER    XII. 

THE    MAKERS    OF    ADMINISTRATIVE    LAW. 

HAVING  referred  to  the  general  nature  of  constitutional 
law  and  to  the  power  by  which  it  is  formed,  it  remains  to 
indicate  the  nature  of  administrative  law  as  the  expression 
of  the  occasional  will  of  the  nation.  Constitutional  law 
establishes  the  political  organization  of  the  nation  ;  while 
administrative  law  provides  for  "the  exercise  of  political 
powers  within  the  limits  of  the  constitution."  In  its 
broadest  sense  administration  includes  "the  making  and 
promulgation  of  laws,  the  action  of  the  government  in 
guiding  the  state  as  a  whole,  the  administration  of  justice, 
the  management  of  the  property  and  business  transactions 
of  the  state,  and  the  working  in  detail,  by  means  of 
subordinates  entrusted  with  a  certain  amount  of  discretion, 
of  the  complex  machinery  by  which  the  state  provides  at 
once  for  its  own  existence  and  for  the  general  welfare. "  * 
This  list  of  topics  embraced  within  the  wide  conception 
of  administration  defines  the  sphere  of  administrative 
law. 

In  the  modern  state,  laws  of  this  class  are  made  by  the 
organs  of  the  sovereign,  of  which,  for  law-making  pur- 
poses, there  are  two — the  legislature  and  the  tribunals. 
' '  The  first  organ  makes  new  law,  the  second  attests  and 
confirms  old  law,  though  under  cover  of  so  doing  it  in- 
troduces many  new  principles."  f 

*  Holland,  "  The  Elements  of  Jurisprudence,"  251. 
t  Ibid.,  51. 


156  POLITICS. 

Seeking,  with  reference  to  the  United  States,  to  deter- 
mine who  forms  and  expresses  the  occasional,  national 
will,  we  find  it  provided  in  the  constitution  that,  "All 
legislative  powers  herein  granted  shall  be  vested  in  a  Con- 
gress of  the  United  States,  which  shall  consist  of  a  Senate 
and  House  of  Representatives. " 

If  we  examine  a  little  further,  we  shall  find  that  the 
President  is  also  a  factor  in  legislation,  and  that  the  law- 
making  power  is  vested  in  Congress  and  the  President 
jointly  :  ' '  Every  bill  which  shall  have  passed  the  House  of 
Representatives,  and  the  Senate,  shall,  before  it  becomes 
a  law,  be  presented  to  the  President  of  the  United  States ; 
if  he  approve,  he  shall  sign  it,  but  if  not,  he  shall  return 
it,  with  his  objections,  to  that  house  in  which  it  shall  have 
originated,  who  shall  enter  the  objections  at  large  on  their 
journal,  and  proceed  to  reconsider  it.  If,  after  such 
reconsideration,  two-thirds  of  that  house  shall  agree  to 
pass  the  bill,  it  shall  be  sent,  together  with  the  objections, 
to  the  other  house,  by  which  it  shall  likewise  be  recon- 
sidered, and  if  approved  by  two-thirds  of  that  house,  it 
shall  become  a  law."* 

Not  only  bills,  but  also  every  order,  resolution,  or 
vote  to  which  the  concurrence  of  both  houses  of  Congress 
may  be  necessary  (except  on  a  question  of  adjournment), 
must  be  presented  to  the  President  for  approval,  and  if 
disapproved,  must  be  passed  again  by  a  two-thirds  vote 
of  the  two  houses,  as  in  the  case  of  bills,  f  An  exception 
has  grown  up  in  practice,  which  is  directly  in  opposition 
to  this  last  mentioned  clause,  and  that  is,  that  resolutions 
of  Congress,  proposing  amendments  to  the  constitution, 
do  not  require  the  assent  of  the  President.  We  thus  see 
that  in  legislation  the  President  represents  the  amount  of 

*  Art.  I.,  Section  7,  ch.  2. 
fib.,  cl.  3. 


THE   MAKERS   OF  ADMINISTRATIVE  LAW.      1 57 

power  that  resides  in  the  number  of  the  votes  which 
lie  between  the  majority  that  passed  the  particular  bill, 
and  the  two-thirds  necessary  to  pass  it  over  the  veto. 
For  illustration,  let  us  suppose  a  majority  of  the  House  of 
Representatives  to  be  one  hundred  and  fifty-seven  votes, 
and  of  the  Senate  thirty-nine  votes,  and  that  a  bill  passes 
by  a  bare  majority  in  both  branches  of  Congress.  We 
will  suppose  the  President  vetoes  the  bill.  If  two-thirds 
of  the  votes  of  the  House  of  Representatives  are  one  hun- 
dred and  ninety-six,  and  of  the  Senate  fifty-one,  it  follows 
that  the  President's  negative  represents  the  quantity  be- 
tween the  majority  and  the  two-thirds,  that  is,  forty-nine 
votes.  In  this  view,  every  measure  which  passes  must 
receive  virtually  a  two-thirds  vote  of  both  houses.  The 
Chief  Magistrate's  approval  produces  the  same  result  as 
if  he  had  been  present  in  each  house  when  the  vote  was 
taken,  and  had  given  a  number  of  votes  for  the  bill,  equal 
to  the  number  between  the  actual  majority  in  its  favor, 
and  the  two-thirds  necessary  to  pass  it  over  a  veto. 

The  President  is  a  legislator  elected  at  large,  and  repre- 
sents the  whole  people.  He  is  not  an  independent  ele- 
ment in  the  government ;  he  does  not  represent  a  distinct 
class.  He  is  not  supposed  to  be  theconserver  of  interests 
which  must  be  guarded  against  enemies  in  the  state.  He 
is  not  the  antithesis  of  the  Demos.  He  is  a  legislator 
chosen  upon  a  vote  of  all  the  electors  in  the  States,  who, 
during  his  term  of  office,  possesses  a  large,  though,  varying 
with  the  occasion,  indeterminate  weight  in  forming  and 
expressing  the  occasional  will  of  the  nation.  In  England, 
as  we  know,  the  monarch  possesses  an  absolute  veto  upon 
legislation.  He  stands  on  one  side,  and  the  legislature 
on  the  other.  He  is  out  of  the  reach  of  the  people.  It 
is  apparent  that  there  cannot  co-exist  such  an  hereditary 
monarch  with  an  absolute  veto  power,  and  a  parliament- 


158  POLITICS. 

ary  system  supposed  to  represent  the  people,  and  to  be 
able  to  express  the  national  will.  Such  a  negative  upon 
the  law-makers  is  absolutism,  and  therefore  in  the  devel- 
opment of  free  English  institutions,  it  is  as  natural  that 
it  should  go  to  the  ground  as  that  the  claims  of  divine 
right  by  James  I.,  and  the  prerogative  claims  of  his  son, 
should  have  disappeared.  The  assertion,  at  this  day,  of 
the  veto  power  by  the  Queen,  would  be  a  palpable  blow 
at  popular  government.  If  the  Queen  should  disapprove 
of  an  Act  of  Parliament,  it  would  be  saying  to  the  English 
nation,  my  will  is  the  ultimate,  the  sovereign  will  in  the 
state ;  but  when  the  President  vetoes  an  Act  of  Congress, 
he  merely  asserts  that  he  casts  against  the  bill  the  num- 
ber of  votes  between  the  majority  and  the  two-thirds  vote. 
Under  the  French  Constitution  of  1875,  the  President 
of  the  Republic  cannot  veto  an  act  of  legislation.  He  is 
rather  a  moderator.  It  is  considered  that  he  ought  to 
have  a  cooler  head  than  the  legislator,  and  he  is  therefore 
permitted  to  interfere  when  there  is  danger  of  over-hasty 
law-making.  .  If  at  any  time  he  judges  it  necessary,  he 
may  enter  the  Assembly  and  take  part  in  the  discussion 
of  a  bill  pending.  But  whenever  he  desires  to  do  so,  he 
must  send  a  message  to  that  body  indicating  his  wish  to 
be  heard.  Thereupon  the  debate  is  suspended  until  the 
next  day,  when  he  is  heard,  unless  a  special  vote  shall 
have  decided  to  hear  him  the  same  day  the  message  is 
transmitted.  After  his  address,  the  session  is  adjourned, 
and  the  subsequent  discussion  is  not  in  his  presence. 
Again,  each  bill  must  pass  through  three  readings,  unless 
considered  urgent,  and  those  laws  which  receive  the  usual 
three  readings,  do  not  take  effect  until  a  month  after 
their  passage,  while  those  which  have  been  declared  ur- 
gent, go  into  operation  within  three  days.  The  consti- 
tution, upon  this  view  of  imposing  moderation,  rather 


THE   MAKERS   OF   ADMINISTRATIVE   LAW.       159 

than  a  check  upon  the  deliberative  branch  of  the  gov- 
ernment, permits  the  chief  magistrate,  when  a  law  has 
been  declared  urgent,  and  passed  without  the  three 
readings,  to  resubmit  it  for  a  new  deliberation  to  the 
Assembly,  and  in  those  cases  where  the  bill  is  going 
through  the  usual  course  of  three  readings,  he  may  inter- 
pose after  the  second  reading,  and  postpone  the  third 
reading  for  a  month.  He  has  in  effect  only  a  deliberative, 
counselling  function  in  the  making  of  the  laws  ;  is  a  sort 
of  prime  minister  without  a  vote. 

The  constitution  of  the  German  Empire  is  somewhat 
vague  on  the  point  in  question  :  It  nowhere,  in  terms, 
authorizes  a  veto,  or  any  interposition,  by  the  Executive, 
in  the  deliberations  of  the  Reichstag.  The  only  provis- 
ion which  refers  to  the  laws  when  they  come  from  the 
legislative  body,  is  that :  ' '  The  laws  and  regulations  of 
the  Empire  shall  be  published  in  the  name  of  the  Empe- 
ror, and  require  for  their  validity,  the  signature  of  the 
chancellor  of  the  Empire,  who  thereby  assumes  the 
responsibility."  This  last  clause  immediately  suggests 
the  query,  to  whom  is  the  chancellor  responsible  ?  He 
is  appointed  by  the  Emperor,  and  is  alone  removable  by 
him  ;  he  cannot  be  impeached  by  the  Reichstag  or  any 
other  body.  His  responsibility  is  solely  to  his  Imperial 
master.  In  effect,  therefore,  when  the  Emperor  disap- 
proves of  a  bill,  his  chancellor  refuses  his  signature  to  it, 
and  it  is  absolutely  vetoed.  If  it  so  happen  that  the 
chancellor  is  the  strong  man,  and  the  head  of  the  state 
merely  a  weak  instrument  of  his  will,  then  of  course,  the 
minister  is  absolute  master  of  legislation.  It  does  not 
seem  to  have  occurred  to  the  Germans,  that  this  require- 
ment of  the  signature  of  the  chief  minister  was  not 
mandatory  upon  that  officer,  or  that  it  really  was  putting 
an  absolute  veto  into  the  hands  of  the  Emperor  until 


160  POLITICS. 

recently,  when  Bismarck  told  the  Reichstag  in  his  usual 
blunt  fashion,  that  he,  the  chancellor,  really  controlled 
legislation.* 

The  President  of  the  United  States  has  not,  it  is  true, 
the  right  of  initiating  legislation  by  the  submission  of 
bills,  as  every  member  in  the  Senate  and  House  has. 
He  is  confined  to  general  reccmmendation  of  measures, 
which  may  or  may  not  be  heeded  ;  but  he  is  as  much  a  part 
of  the  legislative  as  of  the  executive  branch  of  the  gov- 
ernment through  his  qualified  veto. 

In  this  view,  he  is  clearly  not  confined,  in  a  proper  exer- 
cise of  his  power,  to  an  examination  merely  of  the  con  - 
stitutionality  of  a  measure  before  he  si^ns  the  bill.  He 
is  to  "approve  "  or  not  to  "  approve  "  the  measure  as  he 
sees  fit,  and  has  the  same  range  of  considerations  to  re- 
view, before  reaching  a  decision,  as  a  member  of  either 
branch  of  Congress.  He  is,  in  effect,  elected  as  a  co-or- 
dinate member  of  Congress  for  a  term  of  four  years,  with 
a  varying  number  of  votes  at  his  command  ;  while  the 
Senator  is  chosen  for  six,  and  the  member  of  the  House 

*  Bismarck  made  a  speech  in  the  Reichstag,  in  which  he  defined 
the  position  of  the  chancellor,  in  the  Imperial  system,  and  in  doing 
so  explained  the  system  itself  in  a  way  that  astonished  even  the 
natives.  He  said  it  is  the  duty  of  the  chancellor  to  submit  to  the 
Reichstag  the  decisions  of  the  Federal  Council,  and  for  the  perfor- 
mance of  his  duty  he  is  responsible  ;  but  he  need  not  do  it,  if  he  does 
not  think  best.  He  may  tell  the  Emperor  that  he  does  not  think 
the  bill  a  good  one,  and  refuse  to  sign  it  ;  and  the  only  way  out  of 
the  difficulty  for  the  Emperor  is  to  get  another  chancellor.  But 
the  Emperor  need  not  get  another  chancellor  unless  he  pleases,  and 
in  this  way  may  veto  all  legislation,  for  legislation  must  originate 
in  the  Federal  Council.  Thus  it  appears  that  the  chancellor  really 
controls  legislation.  He  is  not  responsible  to  either  house  ;  no  one 
but  the  Emperor  can  dismiss  him. — See  The  Nation,  No.  820, 
March  17,  1881,  p.  179. 


THE   MAKERS   OF   ADMINISTRATIVE   LAW.       l6l 

of  Representatives  for  two  years,  with  but  one  vote 
each. 

In  a  moral  point  of  view,  he  has  no  more  right  to  use 
his  power  for  bad  purposes,  or  to  be  influenced  by  un- 
worthy reasons,  than  the  Senator  or  Representative,  but 
constitutionally  there  is  no  limitation  on  the  veto. 

The  three  factors  of  legislation,  then,  the  President,  the 
Senate,  and  the  House  of  Representatives,  form  and  ex- 
press the  occasional  will  of  the  Union. 

But  why  two  Houses  of  Congress  ?  Democracy  being 
the  basis  of  our  institutions,  and  representatives  being 
merely  elected  because  of  the  physical  impediments  in  the 
way  of  legislating  en  masse,  it  would  seem  natural,  at  first 
blush,  that  there  should  be  but  one  National  Assembly, 
proceeding  directly  from  the  people.  There  is  a  certain 
degree  of  plausibility  in  this  view  ;  it  has  a  palpable  logi- 
cal completeness,  which  has  always  been  attractive  to 
idealists  in  government.  The  French  Democrats,  who 
are  largely  of  this  kind,  always  attempt  the  single  assem- 
bly system  when  they  have  the  upper  hand,  and  always 
with  a  disastrous  outcome.  And  though  in  the  British  sys- 
tem, one  branch  of  the  legislature  is  practically  supreme, 
yet  with  all  its  limitations,  the  House  of  Lords  is  still  a 
serious  counterpoise  to  the  Commons.  It  furnishes  some- 
thing of  what  Bagehot  aptly  terms  the  "  dignified  parts" 
of  the  British  constitution,  which  are  as  valuable  as  what 
he  styles  its  ' '  efficient  parts."  The  principal  reasons 
which  controlled  the  Constitutional  Convention  of  1787 
in  providing  for  a  Senate,  were,  the  examples  in  the 
mother  country,  and  most  of  the  colonies,  of  an  upper 
and  lower  house,  one,  more  or  less  permanent  in  its 
constituents,  and  the  other  the  product  of  general  suf- 
frage ;  further,  because  the  equal  votes  of  the  States  in 
this  body  is  a  recognition  of  their  equality,  and  it  was 


1 62  POLITICS. 

anticipated  that  the  supposed  disposition  of  the  larger 
States  to  oppress  the  smaller  ones  would  thus  be  counter- 
vailed ;  and  lastly,  two  houses  would  be  a  check  upon 
hasty  legislation,  especially  as  it  was  believed  that  the 
Senate  would  be  composed  of  picked  men,  of  more  en- 
larged experience  in  statesmanship,  and  certainly  more 
conservative  in  consequence  of  their  longer  tenure  of 
office  and  method  of  choice  by  the  State  legislatures. 

The  government  established  in  the  United  States  was  a 
more  or  less  ingenious  adaptation  of  that  of  the  mother 
country  to  the  new  circumstances  arising  out  of  the  colo- 
nial growth.  In  England,  at  that  day,  the  House  of 
Lords  was  a  more  important  factor  in  legislation  than  it 
is  now,  and  especially  it  represented  the  aristocratic 
idea,  which  even  on  this  continent  had  a  firm  hold 
on  our  young  society,  until  the  death  of  Washington. 
The  greater  part  of  the  framers  of  our  constitution  were 
in  fact,  really  afraid  of  the  people.  They  were  con- 
scious at  the  same  time  of  the  profound  hold  which  the 
sentiment  of  equality  had  on  the  masses,  especially  in 
New  England,  and  which  had  grown  rapidly  throughout 
the  Middle,  and  Southern  States,  during  the  Revolution- 
ary War.  The  problem  with  them  was,  to  introduce  a 
conservative  element,  as  a  check  upon  the  passions  of  de- 
mocracy, and  this,  it  was  believed,  might  be  accomplished 
by  a  sort  of  artificial  selection,  of  the  conservative  men 
for  the  Senate  through  a  second  vote,  one  remove  from 
the  people ;  as  it  was  also  thought,  a  more  capable  man 
could  be  chosen  for  President,  through  a  similar  removal 
of  the  electoral  body  one  step  from  the  voters.  In  both 
instances  the  results  have  been  fiat  contradictions  of  their 
theories.  The  fear  that  the  larger  States  would  oppress 
the  smaller  is  also  proven  to  have  been  a  phantom. 
These  able  men  were  as  wise  as  any  of  their  day  ;  but 


THE   MAKERS   OF   ADMINISTRATIVE   LAW.      163 

they,  or  the  most  of  them,  experienced  the  difficulty 
which  is  the  greatest  of  all  in  statesmanship  :  that  of 
knowing  the  significance  of  contemporary  events  ;  of  meas- 
uring and  comprehending  present  social  tendencies.  It 
is  easy  to  devise  what  should  have  been  the  laws  two 
generations  ago,  but  it  requires  more  than  ordinary  insight 
to  frame  a  constitution  which  fits  in  exactly  with  the  so- 
cial conditions  of  the  present,  and  is  equally  well  adapted 
to  the  inevitable  future.  The  major  part  of  the  Conven- 
tion of  1787  did  not  see  that  there  was  a  young  nation 
without  their  doors  awaiting  governmental  organization  ; 
that  there  was  a  society  which  had  grown  over  the  narrow- 
colonial  limits,  and  was  fused  into  one  organic  being. 
Hamilton  almost  alone,  fully  comprehended  it.  When  a 
national  government  was  furnished,  State  jealousy,  and 
State  pride  had  nothing  to  stand  on.  What  afterwards 
occurred  in  the  way  of  the  hot  controversy  of  the  North 
and  the  South,  was  a  social  conflict  originating  in  causes 
foreign  to  the  form  of  the  government,  but  in  which  the 
South  seized  upon,  and  artificially  nourished  the  old 
colonial  and  early  State  jealousies,  and  finally  turned  theip 
into  articles  of  political  faith. 


CHAPTER    XIII. 

THE   BICAMERAL   SYSTEM    OF   THE    MODERN    LEGISLATURE. 

THE  division  of  the  legislature  into  two  houses,  as  is 
the  custom  of  most  representative  governments,  rests  on 
ideas  of  political  organization,  which  were  characteristic 
of  the  primitive  Aryans,  and  which  have  become  the 
common  heritage  of  the  Aryan  stock.  'The  full  realiza- 
tion of  these  ideas  was  hindered  in  the  middle  ages  by  the 
existence  of  distinct  social  classes,  which  constituted  the 
basis  of  the  political  organization  of  that  period.  The 
ideal  legislature  of  the  middle  ages  involved  a  distinct 
representation  of  each  of  the  several  classes^  The  upper 
house,  in  the  bicameral  system  of  modern  times,  repre- 
sents either  a  privileged  or  a  conservative  element  in  the 
nation,  or  is  a  means  of  recognizing  the  individuality  of 
the  minor  social  groups  which  have  joined  to  form  the 
larger  whole  ;  while  the  lower  house  represents  the  great 
body  of  the  people  enjoying  political  rights,  and  is  the 
exponent  of  the  political  unity  of  the  nation. 

The  tendency  of  modern  nations  to  maintain,  or  to  re- 
turn to,  the  essential  features  of  the  primitive  Aryan  gov- 
ernment has  already  been  briefly  illustrated.  After  the 
fall  of  paganism  and  the  rise  of  Christianity,  the  church, 
as  the  organized  body  of  Christians,  acquired  an  individ- 
ual existence.  The  affairs  of  religion  ceased  to  be 
merged  in  the  affairs  of  the  state.  The  ecclesiastics  ap- 
peared as  a  class  in  society  and  demanded  an  equal 


THE   BICAMERAL   SYSTEM.  165 

political  recognition  with  other  classes.  The  political 
system  of  the  middle  ages  was  based  on  the  recognition 
of  the  individuality  of  the  several  classes,  as  the  nobles, 
the  clergy,  the  burghers,  and  the  peasants.  In  the  cities 
and  towns,  moreover,  men  of  like  pursuits  were  associat- 
ed in  guilds.  The  fundamental  principle  of  social  organi- 
zation was  found  in  class  distinctions.  Even  individuals, 
as  princes,  and  corporations,  and  institutions  of  learning, 
were  treated  as  classes  by  themselves.  Delegates  received* 
instructions  and  commissions  from  their  principals,  as  to 
their  votes  and  actions.  And  as  late  as  the  meeting 
of  the  three  estates  of  France  at  Versailles  in  1789,  under 
the  summons  of  Louis  XVI. ,  the  delegates  received  in- 
structions. The  nobles,  the  clergy,  and  the  deputies  of 
the  people,  the  "  third  estate,"  were  separately  summoned, 
and  it  was  when  their  instructions  were  thrown  away  that 
a  complete  breach  was  made  with  the  class  system.  Every 
class  voted  individually,  and  could  authorize  a  represen- 
tative to  vote  for  the  whole  class.  The  delegates  of  the 
classes  were  responsible  to  their  principals,  and  were  paid 
for  their  services  by  the  latter.  The  classes  first  con- 
sidered their  own  interests,  and  secondly,  the  general 
welfare.  New  taxes  were  granted  by  the  different  classes, 
and  frequently  upon  conditions,  as,  that  the  country 
should  not  be  mortgaged  or  alienated  to  a  foreign  prince, 
or,  that  their  consent  should  first  be  demanded  before  a 
war  was  declared. 

The  classes  held  fast  to  the  principle  of  making  treaties 
with  the  prince,  and  their  homage  was  sometimes 
made  to  depend  upon  guaranties  of  their  rights  and 
privileges.  An  example  of  this  is  Magna  Charta,  which 
was  a  treaty  between  John  and  the  barons.  Fre- 
quently, as  independent  powers,  the  classes  counselled 
and  aided  the  prince,  and  often,  standing  committees 


1 66  POLITICS. 

were  appointed  by  the  classes  to  assist  in  the  govern- 
ment. * 

It  is  not  strange,  in  view  of  these  mediaeval  conditions, 
that  there  has  descended  to  modern  society,  by  way  of 
survival,  the  belief  that,  wherever  there  exists  a  legalized 
aristocracy,  it  has  separate  political  interests,  which  should 
be  guarded  by  a  separate  legislative  branch.  We  may 
even  go  further,  and  say  that  much  of  modern  thought 
about  society  is  largely  controlled  by  the  class  ideas  of 
the  middle  ages.  We  still  ideally  divide  society  into 
classes,  and  our  speech  only  follows  our  thought,  when 
we  speak  of  the  rich  class,  the  poor  class,  the  middle 
class,  the  educated  class,  and  even  the  criminal  class. 

It  is  clear,  moreover,  that  as  long  as  the  rigid  distinc- 
tions of  mediaeval  classes  were  maintained,  the  bicameral 
system  had  to  yield  to  a  legislature  composed  of  several 
houses.  But  the  union  of  the  privileged  orders,  on  the 
one  hand,  and  the  fusion  of  the  unprivileged  orders,  on 
the  other  ;  or  the  destruction  of  all  marks  of  class  dis- 
tinction save  the  political  privileges  of  the  nobility ;  or 
the  union  of  minor  political  bodies  in  the  formation  of  a 
nation,  were  conditions  favorable  to  the  existence  of  a 
bicameral  legislature.  The  upper  house  in  many  modern 
states  is  composed  of  those  whose  right  to  membership 
rests  on  the  same  basis  as  the  privileges  of  the  noble  class, 
namely,  the  favor  of  the  crown.  In  other  states,  as  in 
the  United  States  or  in  Sweden,  the  upper  house  derives 
part  of  its  significance  from  the  fact  that  't  is  a  recognition 
of  the  individuality  of  the  subordinate  political  bodies  in 
the  nation. 

In  Austria,  by  the  constitution  of  1861,  as  modified  in 
1867,  the  upper  house  consists  of  the  princes  of  the  im- 

*  See  Bluntschli,  "  Lehre  vom  modernen  Stat."  Vol.  ii., 
Ch.  iii. 


THE   BICAMERAL   SYSTEM.  l6/ 

perial  family,  who  have  reached  their  majority ;  heads  of 
noble  families,  nominated  by  the  emperor ;  archbishops 
and  bishops,  having  the  title  of  prince  of  the  empire. 
In  addition,  the  emperor  can,  without  limitation  as  to 
number,  nominate  eminent  men  who  have  signalized 
themselves  by  services  to  the  church  or  to  the  state,  or  in 
science  or  art.  In  Hungary,  the  chamber  of  magnates  is 
composed  of  feudal  nobles.  In  Prussia,  the  members  of 
the  upper  chamber  are  chosen  by  the  king  from  among 
the  candidates  presented  by  the  different  bodies  of  the 
state,  or  classes  of  citizens,  such  as  :  (i)  the  members  of 
the  nobility  called  by  the  ordinance  of  February  3,  1847,  to 
a  seat  in  the  chamber  of  nobles  ;  (2)  the  class  of  counts 
having  a  fief  in  one  of  the  provinces  ;  (this  class  in  each 
province  can  present  a  candidate) ;  (3)  the  assemblage 
of  families  with  large  landed  estates  invested  by  the  king 
with  the  right  of  presentation  ;  (4)  the  families  with  landed 
property  anciently  confirmed  ;  (5)  the  universities  ;  (6) 
the  cities  to  which  the  right  of  presentation  has  been 
granted.  In  Italy,  according  to  the  terms  of  the  Sardin- 
ian constitution  of  1848,  which  has  been  successively  ap- 
plied to  the  provinces  annexed,  the  senate  is  chosen  from 
a  great  variety  of  persons.  All  the  royal  princes  who  have 
reached  the  age  of  twenty-one  years  are  members,  but 
they  cannot  vote,  until  they  have  reached  twenty-five.  In 
addition,  an  unlimited  number  can  be  nominated  by  the 
king,  but  must  be  chosen  from  the  following  categories  : 
(i)  archbishops  and  bishops;  (2)  president  of  the  cham- 
ber of  deputies  ;  (3)  deputies  who  have  had  six  years 
experience  in  three  legislatures  ;  (4)  ministers  of  state ; 
(5)  secretaries  of  state  ;  (6)  ambassadors  ;  (7)  envoys  ex- 
traordinary, who  have  been  in  commission  within  three 
years  ;  (8)  the  superior  presidents  of  the  court  of  cassation, 
and  of  the  court  of  accounts;  (9)  the  superior  presidents 


1 68  POLITICS. 

of  the  court  of  appeal  ;  (10)  the  advocates-general  of 
the  court  of  cassation,  and  procurers-general,  who  have 
had  five  years'  experience  ;  (i  i)  presidents  of  the  courts 
of  appeal,  who  have  had  three  years'  experience  ;  (i  2) 
councilors  of  the  courts  of  cassation,  and  of  the  cham- 
ber of  accounts,  in  office  within  five  years;  (13)  advo- 
cates-general, and  fiscal  officers  of  the  courts  of  appeal, 
in  office  within  five  years  ;  (14)  general  officers  of  the 
land  and  sea  forces;  (15)  councilors  of  state  who  have 
acted  within  five  years  ;  (16)  the  members  of  the  councils 
of  division,  who  have  been  three  times  elected  to  the 
presidency;  (17)  general  intendants,  who  have  been  in 
service  seven  years  ;  (18)  members  of  the  royal  academy 
of  sciences,  nominated  within  seven  years  ;  (19)  ordinary 
members  of  the  superior  council  of  public  instruction, 
of  seven  years' experience  ;  (20)  all  those  who,  by  emi- 
nent services,  or  talents,  shall  have  merited  well  of  the 
country;  (21)  those  who  have  within  three  years  paid 
3,000  livres  of  direct  taxes  upon  their  goods  or  business. 

This  breadth  of  choice  certainly  gives  the  opportunity 
for  the  formation  of  an  upper  chamber,  which  shall  repre- 
sent all  the  conservatism  and  intelligence  of  the  country, 
though  at  the  same  time  it  puts  it  in  the  power  of  the 
monarch,  if  he  has  any  special  end  in  view,  to  fill  the 
Senate  with  his  own  tools. 

In  Portugal  the  constitutional  chart  of  1826,  as  sup- 
plemented in  1852,  provides  that  the  Chamber  of  Peers 
shall  consist  of  members,  whose  tenure  of  office  is  for  life, 
and  hereditary  members  ;  both  of  which  classes  are  nom- 
inated by  the  king,  without  limitation  as  to  numbers, 
and  without  restriction  as  to  choice.  It  shall  contain, 
also,  certain  members  holding  their  positions  ex  officio,  or 
by  reason  of  birth,  as  bishops,  and  the  royal  princes. 

In  Sweden,    since    1866,    the  members   of  the  upper 


THE  BICAMERAL   SYSTEM.  169 

house  are  elected  for  nine  years  by  the  provincial  assem- 
blies (Landstingen),  and  by  the  municipal  Councilors  of 
those  cities  which  do  not  take  part  in  the  provincial  as- 
semblies. Each  of  these  assemblies,  and  each  city  hav- 
ing the  right,  elects  a  member  for  every  30,000  inhabit- 
ants. To  be  a  member  of  the  upper  chamber,  the  person 
must  be  thirty-five  years  of  age,  and  have  possessed  for  at 
least  the  three  preceding  years,  real  estate,  assessed  at 
$2,280,  or  shall  have  paid  within  the  same  period,  a  tax 
upon  a  revenue  of  at  least  $1,144  per  annum,  derived 
from  his  capital  or  occupation. 

In  Denmark,  according  to  the  fundamental  law  of  1866, 
the  upper  chamber  (Landsthing)  is  composed  of  sixty-six 
members,  of  whom,  twelve  are  nominated  by  the  king, 
seven  by  the  city  of  Copenhagen,  forty-five  by  electoral 
districts,  and  one  each  by  the  islands  of  Bornholm  and 
Faroe.  The  royal  deputies  are  nominated  for  life,  from 
among  those  who  have  been  members  of  the  representa- 
tive assemblies,  and  the  remainder  are  elected  for  eight 
years ;  one-half  being  elected  every  four  years.  Their 
election,  however,  is  not  directly  by  the  people,  but  by  a 
body  of  secondary  electors,  elected  by  the  people,  by  a 
somewhat  complicated  proportional  system  of  voting,  in- 
tended to  give  the  minority  a  share  in  the  representa- 
tion. 

In  Holland,  the  constitution  of  1815,  as  modified  in 
1840  and  in  1848,  fixes  the  number  of  the  upper  cham- 
ber at  thirty-nine,  who  are  elected  by  the  provincial  states 
for  nine  years,  and  every  three  years  one-third  go  out  of 
office.  The  only  conditions  of  eligibility  are,  to  be  a 
citizen  of  good  repute,  and  thirty  years  of  age. 

In  Belgium,  by  the  constitution  of  1831,   the  Senate 
consists  of  a  number  of  members  equal  to  one-half  of  the 
number  of  members  elected  to  the  lower  branch  of  the 
8 


1 70  POLITICS. 

legislature.  They  are  elected  for  eight  years,  one-half 
every  four  years.  In  order  to  be  eligible  to  the  Senate, 
the  candidate  must  be  forty  years  of  age,  and  pay  a  direct 
tax  of  at  least  1,000  florins  (about  $480),  and  every 
Belgian,  twenty-one  years  of  age,  who  pays  a  tax  of  eight 
dollars  and  a  half  per  year  can  vote. 

In  France,  during  the  second  Empire,  the  Senate  was 
composed  of  the  princes  of  the  imperial  family,  the  car- 
dinals, marshals,  and  admirals,  and  of  such  citizens  as 
the  emperor  nominated  to  be  senators,  not  to  exceed  one 
hundred  and  fifty,  who  were  appointed  for  life  ;  but  the 
constitution  of  1875  established  a  popular  basis  for  this 
body.  It  enacts  that  the  Senate  shall  be  composed  of 
three  hundred  members,  of  whom  two  hundred  and 
twenty-five  are  elected  by  the  departments  and  colonies, 
and  seventy-five  by  the  National  Assembly ;  the  latter 
for  life.  The  only  conditions  of  eligibility  are,  that  the 
senator  shall  be  a  French  citizen,  and  at  least  forty  years 
of  age.  The  senators  not  appointed  by  the  Assembly 
are  elected  for  nine  years,  by  electoral  colleges,  in  each 
department,  one-third  retiring  every  three  years.  These 
colleges  are  composed  of  the  deputies  elected  to  the  As- 
sembly, the  members  of  the  council-general,  and  the 
members  of  the  councils  of  the  several  departmental  dis- 
tricts (arrondisements),  together  with  a  delegate  from 
each  municipal  council  in  the  department. 

The  federal  republic  of  Switzerland  is  peculiarly  con- 
stituted. By  the  constitution  of  1874,  a  national  council 
or  lower  house,  and  a  council  of  states,  or  upper  house, 
exercise  the  legislative  power  ;  and  these  two,  together, 
elect  seven  persons  who  constitute  a  federal  council,  which 
possesses  the  executive  power.  The  members  of  the 
council  of  states  are  elected  by  cantonal  laws  which  are 
not  uniform.  In  some  cantons,  as  Glavis,  Uri,  and 


THE   BICAMERAL  SYSTEM.  i;i 

Appenzell,  the  members  are  chosen  in  a  democratic  as- 
sembly of  all  the  people ;  in  others,  by  grand  coun- 
cils ;  in  Zurich,  by  direct  suffrage.  The  only  voting 
qualifications  are,  to  be  twenty-one  years  of  age,  and  not 
excluded  from  active  citizenship  by  legislation  of  the  can- 
ton. 

The  upper  chamber,  the  Bundesrath,  or  federal  council 
of  the  German  Empire,  is  really  no  more  than  an  assem- 
blage of  ambassadors  from  the  several  kingdoms,  duchies, 
and  principalities,  each  having  a  fixed  number  of  votes, 
which  are  cast  by  each  delegation  as  a  unit.  The  delegates 
are  paid  by  the  States  sending  them,  and  are  subject  to 
recall  and  substitution.  They  represent  the  States  of  the 
confederation,  as  distinct  political  entities,  and  not  any 
special  class  interests. 

The  English  House  of  Lords  is  composed  of  spiritual 
and  temporal  peers.  The  spiritual  are,  the  archbishops 
and  bishops,  who  in  1878  numbered  twenty-six  ;  the 
temporal  in  the  same  year,  were  5  peers  of  the  blood 
royal,  21  dukes,  19  marquises,  115  earls,  25  viscounts, 
248  barons,  together  with  28  representative  Irish  peers, 
elected  for  life  by  their  fellows,  and  16  Scotch  peers, 
elected  for  the  term  of  Parliament  by  their  order. 

The  permanent  tenure  of  the  upper  house  of  parlia- 
ment has  evidently  influenced  the  principal  British 
dependencies  in  their  legislative  arrangements. 

By  the  act  of  parliament  of  1855,  establishing  a  form 
of  government  in  New  South  Wales,  an  upper  house, 
called  a  legislative  council,  is  provided  for.  The  crown, 
by  an  instrument  under  the  sign-manual,  authorizes  the 
governor,  with  the  assent  of  the  executive  council,  to 
summon  to  the  first  legislative  council  not  less  than 
twenty-one  persons,  as  he  shall  deem  fit.  At  least  four- 
fifths  of  these  persons  shall  not  be  office-holders  under 


1/2  POLITICS. 

the  crown.  The  members  of  this  first  council  were  to 
hold  their  seats  for  five  years,  while  those  summoned 
afterwards  were  to  hold  for  life. 

In  Victoria,  by  an  act  of  parliament,  in  the  same  year, 
1855,  tnere  is  provided  an  upper-chamber,  also  called 
the  legislative  council.  It  consists  of  thirty  members, 
who  are  elected  in  districts,  called  electoral  provinces, 
five  to  each  of  the  six  provinces,  into  which  the  colony  is 
divided.  It  is  so  arranged  that  a  member  from  each 
electoral  province  shall  retire  every  two  years,  and  a  new 
one  shall  be  elected  in  his  place.  The  qualification  of  a 
councilor  is,  that  he  shall  be  at  least  thirty  years  of  age, 
and  the  owner  of  a  landed  estate,  of  the  value  of  five 
thousand  pounds  sterling,  or,  of  the  annual  rental  value 
of  five  hundred  pounds  sterling. 

The  British  colonies,  in  upper  and  lower  Canada,  were 
consolidated  into  a  federal  union  in  1867,  and  sub- 
sequently the  other  colonies  and  possessions  as  far  as  the 
Pacific  ocean  were  added.  This  federation  consists  of 
the  provinces  of  Ontario,  Quebec,  Nova  Scotia,  New 
Brunswick,  British  Columbia,  Manitoba,  and  Prince 
Edward  Island.  The  executive  authority  is  a  governor- 
general,  nominated  by  the  Queen,  who  acts  under  the 
advice  of  a  privy  council,  appointed  and  removable  by 
himself  with  the  assent  of  the  federal  house  of  commons. 
The  legislative  department  consists  of  a  senate  and  house 
of  commons.  The  senate  consists  of  78  senators.  The 
senator  is  appointed  for  life  by  the  Governor-General ;  he 
must  be  thirty  years  of  age,  the  owner  of  a  freehold  estate 
of  the  value  of  $4,000,  or  possessed  of  real  and  personal 
property  of  the  same  value  above  his  debts,  and  must  be 
a  resident  of  the  province  from  which  he  is  appointed. 

This  brief  reference  to  the  present  constitutions  of  the 
upper  legislative  chamber  in  the  principal  civilized  states 


THE   BICAMERAL  SYSTEM.  173 

shows  that,  for  the  most  part,  the  members  hold  their 
seats  either  as  a  political  privilege  by  appointment  of  the 
crown,  who  is  the  source  of  the  political  privileges  enjoyed 
by  a  nobility,  or  through  an  indirect  election  or  an  ap- 
pointment, in  which  prominence  is  given  to  certain  sub- 
ordinate groups  within  the  nation.  In  Austria,  Hungary, 
Prussia,  Italy,  Portugal,  and  England,  their  authority 
rests  on  the  will  of  the  king,  and,  as  a  privileged  element, 
or  as  an  aristocracy  between  king  and  commons,  are  in- 
clined to  be  conservative,  and  to  prevent  power  from  fall- 
ing exclusively  into  the  hands  of  the  crown  or  of  the 
people. 

Through  the  upper  house  in  the  German  Empire,  Switz- 
erland, Holland,  Sweden,  the  United  States,  and  in  France 
to  a  certain  extent,  the  individuality  of  social  groups  sub- 
ordinate to  the  nation  is  recognized,  and  a  certain  balance 
is  established  between  local  independence,  on  the  one 
hand,  and  the  extreme  of  centralization,  on  the  other. 
The  upper  house  in  Belgium,  Denmark,  France,  and  the 
British  provinces  falls,  to  a  certain  extent,  under  each  of 
the  foregoing  descriptions. 

The  lower  house  of  the  modern  legislature,  on  the 
other  hand,  stands  for  the  popular  assembly  of  the  primi- 
tive state.  The  ancient  popular  assembly,  in  which  all 
freemen  participated,  ceased  to  be  a  part  of  the  legislature 
of  sovereign  governments,  not  through  the  growth  of  a 
sentiment  hostile  to  government  by  the  people,  but  be- 
cause of  that  extension  of  sovereign  dominion  which 
rendered  the  meeting  of  the  whole  people  impracticable. 
At  an  early  stage  in  the  growth  of  the  nation,  through  the 
union  of  communities  or  through  the  extension  of  the 
dominion  of  a  single  community,  a  point  was  reached 
where  it  was  no  longer  possible  for  the  whole  body  of  the 
freemen  to  meet  in  a  common  assembly  ;  and  at  this 


1/4  POLITICS. 

point  the  legislature  lost  its  popular  branch,  which  re- 
mained in  some  cases  the  assembly  of  the  subordinate 
political  division  of  the  nation.  The  introduction  of  rep- 
resentation made  practicable  an  assembly  in  which  the 
mass  of  the  people,  through  their  representatives,  might 
have  a  voice  in  the  political  affairs  of  the  nation  ;  and 
there  grew  up  by  the  side  of  the  exclusive  council,  a  body 
to  take  the  place  of  the  ancient  assembly  of  the  freemen, 
and  to  represent  the  unity  of  the  nation,  as  opposed  to 
the  upper  house,  the  exponent  of  class  or  territorial 
divisions. 

In  addition  to  the  survival  of  primitive  and  mediaeval 
political  methods,  there  may  be  perceived  in  these  modern 
arrangements  two  fundamental  ideas ;  the  one  is,  that 
society  contains  within  itself  two  antagonistic  elements, 
conservatism  and  radicalism,  which,  like  the  old  concep- 
tions of  good  and  evil,  are  supposed  to  be  always  present, 
and  always  secretly  or  openly  in  conflict ;  and  the  other, 
that  if  you  push  the  selection  one  or  two  removes  away 
from  the  body  of  the  people  you  will  be  apt  to  get  wiser 
representatives  than  by  direct,  popular  vote.  Where 
there  are  distinctly  defined  classes,  as  there  were  in  medi- 
aeval times,  each  class  is  conservative  as  to  itself;  that  is, 
it  wishes  to  preserve  its  own  privileges,  and  whichever 
class  forms  and  expresses  the  state  will  and  uses  the  state 
force,  will  of  course  be  the  conservative  one  in  the  state. 
It  will  be  the  class  that,  having  the  greatest  number  of 
advantages  to  be  derived  from  the  use  of  state  power 
or  the  greatest  number  of  interests  to  suffer  by  a 
change,  will  be  opposed  to  modifications  of  ex- 
isting conditions.  But  break  up  these  mediaeval 
classes  ;  take  the  individual  out  of  his  class,  and  merge 
him  in  the  nation  ;  make  the  social  body  a  collection 
of  units,  with  individual  relations  directly  with  the 


THE   BICAMERAL  SYSTEM.  17$ 

state,  and  then  we  find  that  those  persons  are  the  con- 
servatives who  have  the  most  to  lose  through  change ;  or, 
where  their  interests  are  not  apparently  affected,  who  by 
temperament,  or  education,  or  surrounding  influences  are 
averse  to  new  experiments.  Conservatism,  then,  is  not 
necessarily  identified  with  a  class,  fixed  within  well-defined 
social  limits,  at  points  where  you  can,  as  it  were,  put 
your  finger  upon  it.  Every  question  that  comes  up 
in  the  state  for  determination  is  advocated  or  resisted, 
as  it  affects  actual  or  supposed  interests,  or  personal 
views  or  prejudices,  by  each  citizen.  In  short,  every  ques- 
tion has  its  radical  and  conservative  aspect,  and  every 
citizen  is  both  a  radical  and  conservative,  as  the  occasion 
urges  him  to  act.  In  our  modern  conditions  of  society, 
and  especially  as  they  have  developed  in  the  United  States, 
we  cannot  create  a  legislative  branch  on  purpose  to  rep- 
resent a  special  conservative  class,  much  less  to  represent 
conservatism  in  the  abstract.  Political  parties  are  now 
the  instrumentalities  which  take  up  and  advocate  any 
special  interest,  or  set  of  opinions. 

Can  we,  then,  by  selecting  representatives  out  of  par- 
ticular categories  of  men,  or  by  electing  them  at  second- 
hand by  a  selected  body,  as,  for  instance,  by  the  State  legis- 
lature, expect  to  get  together  the  wisest  of  the  community, 
for  a  separate  legislative  house  ?  We  could,  if  every  one 
having  a  voice  in  the  choice  of  representatives,  whether 
the  primary,  or  the  secondary  elector,  should  be,  not  only 
disposed  to  look  around  for  the  wisest  man,  but  should 
also  have  an  opportunity  to  vote  for  him  when  found. 
Unfortunately,  neither  of  these  conditions  ordinarily  exists; 
most  voters,  in  fact,  look  at  candidates  as  instruments  to 
carry  out  particular  views  ;  they  seldom  measure  their 
fitness  by  the  general  test  of  ability  to  do,  at  the  best, 
whatever  work  the  state  may  have  to  do.  Then 


or  THE 
UNIVERSIT 

OF 


176  POLITICS. 

the  necessity  of  concerted  action  through  party,  forces 
upon  the  voter  the  choice  between  the  man  whom  his 
party  proposes,  whether  wise  or  not,  and  the  man  whom 
the  opposite  party  puts  forward,  who,  though  he  may  be 
the  better  man,  is  pledged  to  forward  measures  the  voter 
deems  hurtful. 

The  theory  is,  that  a  legislature  is  a  deliberative  body, 
which  debates  about,  and  finally  judicially  decides  upon, 
measures.  This,  we  know,  is  only  partly  true  in  fact. 
The  judicial  tone  is  maintained  upon  secondary,  unim- 
portant questions  ;  but  the  partisan  spirit  is  apt  to  pre- 
vail upon  those  where  parties  are  divided. 

Experience  shows  that  the  composition  of  a  legislative 
body,  elected  by  an  extended  suffrage,  whether  universal 
or  approximately  so,  is  governed  by  those  who  control 
the  primary  movements  of  political  parties,  or  what  per- 
haps may  be  designated  as  the  springs  of  party  organiza- 
tion ;  so  that  the  legislature  may  be  above,  or  on  a  level 
with,  or  below  the  average  wisdom,  culture,  and  honesty 
of  the  community,  as  these  controllers  of  party  are  in 
these  respects  above,  below,  or  on  a  level  with  the  com 
munity.  It  may  be  considered,  however,  that  the  ten- 
dency is  generally  towards  a  representation  of  the  average 
ability  of  the  majority  of  the  voters. 

In  the  United  States,  universal  suffrage  has  become 
the  rule.  Fixed,  legal,  class  distinctions  do  not  exist ; 
those  which  inevitably  grow  up  through  differences  in 
wealth  and  culture,  are  very  mutable ;  sometimes  lasting 
two,  seldom  three  generations.  There  is,  therefore,  no 
reason  for  a  legislative  branch  to  represent  especially 
the  conservative  classes.  As  we  have  seen,  even  if  such 
were  the  occasion  of  its  formation,  the  inevitable  ten- 
dencies in  a  democratic  system  would  bring  it  under  the 
control  of  party  and  the  people.  A  democracy  will  not 


THE   BICAMERAL   SYSTEM.  177 

tolerate  any  intermediary  between  its  representatives  and 
itself.  Our  Federal  Senate,  as  experience  has  shown,  is 
not  necessary  as  a  shield  for  the  little  States  against  the 
large  ones,  nor  is  it  possible  for  it  to  rise  higher  than  its 
source,  and  be  wiser  or  better  than  the  average  of  those 
who  elect  its  members. 

Theoretically,  in  a  homogeneous  nation  like  ours,  there 
should  be  only  one  legislative  body,  elected  directly  by 
the  people,  and  capable  of  promptly  expressing  the  na- 
tional will ;  but  in  practice  it  is  found  that  there  is  a  rea- 
son for  an  upper  as  well  as  a  lower  house.  The  depart- 
ment of  the  government  which  expresses  the  national  will 
should  form  its  judgments  with  the  greatest  possible  de- 
liberation. Now,  observation  proves  that  when  a  meas- 
ure is  passed  upon  by  two  distinct  bodies  of  men,  deliber- 
ating separately,  it  will  receive  more  criticism  and 
consideration  than  if  acted  upon  by  the  same  number  of 
men  united  in  one  body.  It  is  a  psychological  fact,  that 
one's  individual  will  is  merged  into  the  common  will  of 
an  associate  body,  in  which  he  is  called  upon  to  act ;  and 
the  larger  the  body,  the  less  voluntary  his  action.  At 
least,  the  sense  of  personal  responsibility  is  diminished  in 
proportion  to  the  number  of  those  who  are  jointly  respon- 
sible. And  again,  every  separate  deliberative  body  is  more 
or  less,  consciously  or  unconscously,  in  antagonism 
with  co-ordinate  bodies,  and  for  this  reason,  there  is  a 
sort  of  corporate  impulse  to  an  independent  judgment. 
Hence,  there  is  an  advantage  in  two  legislative  houses. 
Even  if  the  people  elected  all  their  delegates  at  once,  for 
the  same  terms,  it  would  be  better  to  separate  them  into 
two  chambers  than  have  them  all  act  together. 

There  is,  moreover,  an  advantage  in  electing  one  house 
for  a  longer  term  than  the  other,  and  in  having  it  con- 
sist of  fewer  members,  simply  because,  as  suggested,  the 
8* 


1/8  POLITICS. 

sense  of  responsibility  increases  in  the  inverse  ratio  of 
numbers,  and  it  may  be  added  that  a  certain  indepen- 
dence of  judgment  is  secured  by  length  of  official  ten- 
ure. 

In  this  view,  we  may  conclude  that,  though  the  election 
of  the  members  of  the  Federal  Senate,  by  the  State  legis- 
latures, does  not  necessarily  secure  the  choice  of  conserv- 
ative men,  or  assure  any  more  wisdom  than  should  be 
found  in  the  House  of  Representatives  ;  yet,  because  it  is 
a  body  separate  from  the  lower  house,  and  because  its 
members  have  a  longer  tenure  of  office,  and  are  fewer  in 
number,  there  is  the  possibility  of  an  enlarged  sense  of 
responsibility,  and  the  advantage  of  the  deliberations  of  a 
more  restricted  body. 

The  lower  legislative  house  is  supposed  more  especially 
to  represent  the  mass  of  the  people  ;  but  where  the  upper 
legislative  house  proceeds  from  a  popular  vote,  as  is  the 
case  in  the  several  States  of  the  United  States,  and  also 
where  its  members  are  elected  by  a  second  body  of  elec- 
tors, as  in  the  case  of  our  Federal  Senate,  and  the  upper 
houses  of  some  of  the  European  States,  it  is  only  closer  to 
the  people,  because  its  members  usually  hold  their  posi- 
tions for  shorter  terms,  and  consequently  more  frequent 
elections  are  necessary.  For  this  reason,  the  House  of 
Representatives  in  our  system,  may  be  said,  every  two 
years,  to  be  an  expression  of  the  immediate  will  of  the 
people,  because  voters  for  its  members  must  have  the 
qualifications  requisite  for  electors  of  the  most  numerous 
branch  of  the  legislature  of  the  State  from  which  they 
come. 


CHAPTER   XIV. 

THE    INITIATIVE    IN    LEGISLATION. 

IN  order  that  the  political  power  of  a  nation  may  be  in 
a  state  of  equilibrium,  the  right  to  initiate  laws,  and  the 
right  finally  to  pass  them,  should  both  be  lodged  in  the 
same  department  of  government.  If  the  right  to  initiate 
is  in  one  person  or  body  of  persons,  and  the  right  merely 
to  accept  or  to  reject  is  in  another  person  or  body  of  per- 
sons, then  there  is  a  practical  division  of  the  national 
will,  which,  being  an  abnormal  condition  of  things,  will 
produce  a  struggle  in  the  state  to  bring  about  a  re-union 
of  the  two  rights  in  one  person  or  in  one  department. 

The  permanent  will  of  the  nation  expressed  through  its 
constitution  designates,  among  other  things,  the  persons 
or  bodies  of  persons  who  shall  formulate  its  occasional 
will,  with  reference  to  the  two  sets  of  relations  with  which 
the  state  deals — those  between  the  nation  and  other  foreign 
political  bodies,  and  those  between  the  individual  citizens 
•  of  the  nation  itself;  and  also  defines  the  limitations  within 
which  these  persons  or  bodies  of  persons  shall  move. 
The  departments  of  government  do  not  act  spontaneously. 
They  proceed  in  a  predetermined  way  when  set  in  motion 
by  duly  authorized  persons.  When  a  foreign  nation  is  to 
be  spoken  to,  it  must  be  by  the  president  or  monarch, 
through  the  department  for  foreign  affairs,  or  the  ambas- 
sador. When  laws  are  to  be  passed,  the  project  or  bill 
must  be  introduced  by  a  person  authorized  to  do  so. 
This  leads  to  the  important  question,  who  can  set  the 


180  POLITICS. 

casual  will  in  operation ;  or,  in  other  words,  who  can  take 
the  initiative  in  legislation  and  in  the  management  of 
foreign  affairs  ? 

It  will  be  found  that  the  possessor  of  the  power  of  in- 
itiating legislation,  or  treaty-making,  has  command  of  the 
sources  of  what  may  be  called  creative  politics. 

After  the  constitution  and  form  of  government  have  been 
settled,  a  great  deal  of  administration  is  routine  work, 
but  constantly  there  are  arising  new  circumstances,  new 
demands,  new  contingencies  to  be  dealt  with.  These 
require  lines  of  policy  to  be  determined  upon  ;  and  if  the 
matter  in  hand  concerns  the  external  relations,  it  becomes 
important  to  know  who  can  initiate  the  policy  and  the 
diplomacy  necessary  to  the  occasion.  In  our  own  system, 
this  is  a  function  which  pertains  exclusively  to  the  Presi- 
dent. The  Senate,  as  to  the  foreign  policy,  acts  as  an 
advising  and  consenting  body. 

A  treaty  is  a  contract  made  by  the  nation  with  a  foreign 
power.  Under  our  constitution,  it  becomes,  "the  su- 
preme law  of  the  land."  If  it  does  not  require  any  legis- 
lation to  carry  out  its  provisions,  it  is  in  effect  a  law  made 
by  the  President  and  Senate.  And  it  is  to  be  remarked 
that  the  initiative,  in  this  law-making,  is  entirely  with  the 
President,  through  the  ambassador.  The  Senate  cannot 
set  on  foot  a  treaty ;  it  can  only  adopt  or  reject  one 
already  made  ;  it  cannot  even  amend  the  one  presented. 
When  we  recollect  that  there  have  been  instances  in  our 
history  when  the  laws  of  states  have  been  abrogated  by 
treaties,  as,  for  instance,  those  precluding  the  inheritance 
of  real  estate  by  foreigners,  it  is  apparent  what  an  enor- 
mous power  is  thus  deposited  in  the  hands  of  the  Chief 
Magistrate  and  Senate.  In  1794,  when  Jay's  treaty  was 
finally  approved  in  the  face  of  bitter  popular  opposition, 
and  the  House  of  Representatives  was  asked  to  adopt  ap- 


THE   INITIATIVE  IN    LEGISLATION.  l8l 

propriate  legislation  to  carry  out  its  provisions,  also  sub- 
sequently in  1815,  at  the  time  of  the  treaty  of  peace  with 
Great  Britain,  and  more  recently  at  the  time  of  the  pur- 
chase of  Alaska  from  Russia,  the  question  was  much  dis- 
cussed whether  Congress  was  morally  bound  to  execute 
those  provisions  of  a  treaty  which  require  legislation  to 
make  them  effective.  It  has  not  been,  and  probably 
never  can  be,  definitively  settled,  for  the  obvious  reason 
that  there  is  no  tribunal  whose  decision  can  be  in  any 
sense  authoritative.  But  there  is  no  question  that,  whei? 
a  treaty  has  been  made  by  the  President,  and  approved  by 
the  Senate,  the  United  States  is  bound,  by  the  rules  of  in' 
ternational  law,  to  live  up  to  its  terms,  and  if  it  fails  to  do 
~  so,  because  of  the  refusal  of  Congress  to  furnish  the 
L  necessary  legislation,  the  foreign  power,  the  other  party 
I  to  the  contract,  has  cause  of  war.  It  is  certainly  no 
answer  to  the  demand  for  fulfillment  of  its  terms,  that  the 
legislative  branch  of  the  government  is  displeased  with 
the  treaty,  and  properly  cannot  be  so  considered,  because 
the  entire  political  society  called  the  United  States  is,  in 
its  international  relations,  an  organic,  single,  political 
being,  which  through  its  President  and  Senate  expresses 
its  will  and  assent  in  the  form  of  the  given  treaty. 

We  have  thus  the  anomaly  in  our  system,  that  a 
"supreme  law  of  the  land"  may  be  initiated  by  the 
President  alone,  and  may  be  finally  enacted  by  him,  with 
the  advice  and  consent  of  the  Senate.  The  treaty  repeals 
all  la\vs  which  are  in  conflict  with  it  ;  but  on  the  other 
hand,  an  act  of  Congress  may  virtually  abrogate  the 
treaty,  if  its  legislation  comes  into  conflict  with  it.  As 
the  supreme  court  of  the  United  States  announced  :  "A 
treaty  may  supersede  a  prior  act  of  Congress,  and  an  act 
of  Congress  may  supersede  a  prior  treaty/'  *  Our  Constitu- 
*  The  Cherokee  Tobacco  case,  n  Wallace  Rep.  621. 


1 82  POLITICS. 

tion,  as  to  the  treaty-making  power,  is  a  compromise 
between  two  ideas  ;  the  one  that  the  nation  can  speak 
to,  or  treat  with  other  nations  only  through  the  execu- 
tive ;  and  the  other,  that  the  legislative  body  is  the  proper 
organ  to  express  the  national  will.  The  first  is  a  survi- 
val of  absolutism,  of  the  form  of  government  which  was 
personified  in  the  prince  ;  and  the  second  is  the  out- 
growth of  modern  representative  government.  We  do 
not  accept  either  theory  in  its  entirety.  The  inclination 
is,  however,  rather  to  the  old  one,  because  we  entrust  to 
the  President  the  power  to  initiate  and  provisionally  con- 
clude the  treaty,  and  put  the  Senate  in  the  attitude  of 
a  privy  council,  or  cabinet,  to  assent  to,  or  reject  it. 
Many  plausible  reasons  were  advanced  during  the  debates 
of  the  Constitutional  Convention,  and,  in  the  discussions 
pending  the  adoption  of  the  Constitution  by  the  States, 
and  have  been  since  advanced,  in  vindication  of  this  fea- 
ture of  our  system.  It  was,  and  is  claimed,  that  treaty- 
making  pertains  strictly  to  neither  the  executive  nor  the 
legislative  branch  ;  that  its  objects  being  to  make  con- 
tracts with  other  nations,  it  properly  appertains  to  a  de- 
partment by  itself,  and  moreover  that  dispatch  and  secrecy, 
which  are  often  necessary,  would  be  impossible  if  the 
treaties  should  be  publicly  discussed  in  both  houses.  It 
may  be  answered  that  many  other  acts  of  government  are 
better  accomplished  under  an  absolute  monarchical  than 
under  a  representative  system,  but  we  are  fully  committed 
in  the  United  States  to  the  latter.  We,  as  to  other  mat- 
ters, lodge  the  will-expressing  power  in  the  legislative 
branch  ;  that  is,  in  the  President  and  two  Houses  of  Con- 
gress jointly.  Why  another  rule  in  this  case  ?  Our  Con- 
stitutional defect  is,  that  we  attempt  to  divide,  as  it  were, 
this  will.  We  say,  as  to  our  foreign  relations,  the  President 
with  the  assistance  of  the  Senate  shall  express  it,  and  by 


THE   INITIATIVE   IN   LEGISLATION.  183 

the  same  act  he  shall  also  create  a  supreme  law  of  the 
land  ;  and  we  say  as  to  our  internal  relations,  that  only 
the  ordinary  representative  body  in  conjunction  with  the 
executive  shall  be  omnipotent. 

It  is  true,  that  international  intercourse  is  largely 
carried  on  as  though  profound  secrecy  were  absolutely 
necessary,  and  publicity  destructive  of  its  objects,  but  it 
may  be  seriously  asked,  whether  this  is  not  a  mistake  ? 
In  an  age  when  so  much  of  the  business  of  government 
is  accomplished  through  discussion,  why  should  those 
things  which  affect  nations  in  their  relation  to  one  another, 
and  wide  circles  of  interest,  be  kept  secret  until  they  are 
accomplished  facts,  or,  if  discussed  at  all  in  advance, 
discussed  upon  surreptitious  information,  or  half-true 
guesses  ? 

The  treaty-making  power  is,  in  Great  Britain,  subject 
to  the  action  of  parliament,  in  so  far  as  it  trenches  upon 
the  legislative  domain  ;  in  this  respect  being  analogous 
to  our  system  ;  though  with  us,  there  is  this  essential  and 
very  important  difference,  that  the  treaty  may  override  or 
prohibit  all  State  legislation  upon  matters  which  otherwise 
would  be  solely  within  the  competence  of  the  State. 

In  the  constitution  of  the  German  Empire,  it  is  pro- 
vided that  all  treaties  with  foreign  States,  which  refer  to 
matters  within  the  control  of  the  legislature  of  the  Em- 
pire shall  require  for  their  validity  the  consent  of  the 
Bundesrath,  or  federal  council,  and  of  the  Reichstag. 
Within  this  category  would  come  all  commercial  treaties. 
As  an  extended  reference  has  been  made  to  one  power  of 
Our  Federal  Senate,  it  may  not  be  out  of  place  to  refer 
briefly  to  other  functions  of  that  body  which  ally  it  on 
one  side  to  the  executive,  and  on  the  other  to  the  judiciary. 

The  necessity  of  requiring  the  assent  of  the  Senate  to  all 
appointments  to  office,  by  the  President,  naturally  limits 


1 84  POLITICS. 

the  latter  in  his  choice,  and  practically  puts  the  appoint- 
ing power  in  the  hands  of  the  Senate.  It  has  led  to  what 
is  euphemistically  termed  "the  courtesy  of  the  Senate/' 
through  which  a  division  of  appointments  to  the  offices 
among  the  different  members  is  accomplished.  If  the 
function  of  the  President  is  to  see  that  the  laws  are  ex- 
ecuted, and  he  is  to  be  made  responsible  therefor,  then 
clearly  he  should  have  the  power  of  appointing  all  sub- 
ordinates. As  it  is,  he  must  have  the  assent  of  the  Senate 
to  the  appointment,  and  by  the  tenure  of  office  act  of 
1867  he  cannot  remove  even  the  heads  of  departments 
without  the  assent  of  the  same  body  ;  during  a  recess,  he 
can  only  suspend  an  officer  until  the  next  session  of  the 
Senate,  and  fill  only  vacancies  caused  by  death  or  resig- 
nation. 

It  is  not  necessary  now  to  allude  more  fully  to  this  ex- 
traordinary control  of  the  Senate  over  the  executive 
department,  except  to  illustrate  the  real  departure  from 
what  is  popularly  supposed  to  be  the  distinguishing  feat- 
ure of  our  new  system,  the  rigid  separation  of  the  execu- 
tive and  legislative  departments. 

The  function  of  the  Senate  as  a  court  to  try  cases  of 
impeachment,  and  especially  to  sit  in  judgment  on  the 
President,  when  charged  with  high  crimes,  still  further 
enlarges  the  power  of  that  body  over  the  executive. 

If  domestic  interests,  or  any  considerable  number  of 
people  in  the  country,  demand  legislation  upon  any 
given  subject,  the  same  question  arises,  Who  can  initiate 
the  laws  ? 

The  demand  and  the  supply  in  legislation  and  foreign 
policy  give  rise  to  all  the  movement  of  the  current  poli- 
tics of  a  country.  Now,  where  in  any  government  the 
right  to  initiate  the  laws  and  policy,  and  also  finally  to 
pass  or  make  them  effective,  are  both  lodged  in  the  same 


THE   INITIATIVE   IN    LEGISLATION.          185 

person  or  body,  there,  at  that  point,  will  be  found  what 
may  be  styled  the  balance  of  power  ;  and  it  can  be  fur- 
ther said  that  that  particular  government  is  politically 
matured.  It  may  be  an  absolute  despotism  or  a  pure 
democracy,  and  yet  it  will  be  in  a  condition  of  equi- 
librium, and  not  in  a  transition  stage.  The  equilibrium 
may  not  continue  very  long,  and  the  balance  of  power 
may  again  commence  to  move  to  some  other  part  of  the 
organism  ;  but  while  it  lasts,  these  two  powers,  the  right 
to  initiate  and  the  right  to  pass  or  finally  adopt,  must  co- 
exist in  the  same  person  or  body. 

It  will  probably  be  found  that  all  revolutions,  whether 
gradual  or  sudden,  have  had  for  their  ultimate  object  the  pos- 
session of  one  or  both  of  these  rights.  Of  course  this  object 
is  very  seldom,  if  ever,  thus  distinctly  formulated  in  the 
minds  of  the  actors,  particularly  at  the  outset.  It  is  only 
after  the  first  resistance  to  acts  of  oppression,  or  the  first 
outbursts  of  passion  have  been  succeeded  by  organized 
conflict,  that  the  aim  to  control  the  law-initiating  and 
law-passing  power  clearly  appears.  We  have  had,  how- 
ever, in  recent  times  a  striking  example  of  a  single  con- 
spirator deliberately  planning  to  control  this  initiatory 
process  in  the  government,  and  completely  succeeding. 
The  French  constitution  of  1848  provided  that  the  Presi- 
dent of  the  Republic  should  be  elected  for  four  years,  and 
should  not  be  re-eligible  until  after  an  interval  of  four 
years.  It  also  required  that  propositions  to  amend  the 
constitution  could  only  proceed  from  the  national  assem- 
bly, and  the  amendment  for  its  adoption  had  to  be  ac- 
cepted by  a  three-fourths  vote  of  that  body.  Louis 
Napoleon,  as  his  term  of  office  as  first  President  was  ap- 
proaching its  end,  caused  his  friends  in  the  assembly  to 
propose  a  general  revision  of  the  constitution,  in  order  to 
permit  him  to  be  re-elected  immediately.  The  proposi- 


1 86  POLITICS. 

tion  did  not  receive  the  necessary  three-fourths  vote  of  the 
assembly,  and  was  consequently  defeated ;  but,  notwith- 
standing, Napoleon,  a  few  months  later,  having  the  army 
on  his  side,  dispersed  the  assembly,  and  submitted  for 
adoption  or  rejection  to  the  vote  of  the  people  this  plebis- 
cite :  ''The  French  people  wish  the  maintenance  of  the 
authority  of  Louis  Napoleon  Bonaparte,  and  delegate  to 
him  the  powers  necessary  to  establish  a  constitution  upon 
the  basis  proposed  in  the  proclamation  of  December  2, 
1851."  The  people  having  adopted  the  plebiscite  by  a  large 
majority,  Napoleon  promulgated  a  constitution  which 
confided  to  himself  for  ten  years  the  government  of  the 
Republic,  and  which  expressly  provided  that  he  should 
have  the  sole  initiative  of  the  laws. 

It  was  the  assertion  and  final  seizure  of  this  initiative 
power  by  the  assembly  in  the  first  French  revolution  which 
lifted  the  grand  movement  of  the  people  out  of  the  lower 
regions  of  blind  rage  and  resistance  ;  and  when  they 
added  to  it  the  prerogative  of  adopting  the  laws  of  their 
own  initiation,  the  revolution  was  politically  completed. 

Louis  XVI.  called  together  the  Estates  General  of 
France  in  1789.  The  convocation  was  of  the  three 
classes,  the  clergy,  the  nobility,  and  the  third  estate. 
When  the  attempt  to  deliberate  by  the  orders  separately 
failed,  the  third  estate,  with  a  few  of  the  clergy,  constituted 
themselves  a  national  assembly,  and  proceeded  to  reor- 
ganize the  government.  The  legal  revolution  was 
accomplished  when  the  king  assented  to  a  constitution 
which  provided  that  the  National  Assembly  should  be  per- 
manent, though  renewed  every  two  years  ;  that  the  right 
to  propose  the  laws  was  exclusively  vested  in  the  assembly, 
though  the  king  should  have  a  suspensive  veto,  that  is, 
his  veto  should  suspend  the  law  until  two  succeeding  leg- 
islatures had  acted  upon  it.  When  Louis  abandoned  the 


THE   INITIATIVE   IN   LEGISLATION.  l8/ 

power  of  initiating  legislation,  he  had  completely  sur- 
rendered himself  to  the  revolution. 

In  England,  the  movement  has  been  a  slow  continuous 
one,  which  has  transferred  the  initiative  power  from — to 
use  again  the  language  of  Mr.  Bagehot — the  dignified  to 
the  efficient  parts  of  the  British  system .  It  was  a  very  long 
time  ago  when  only  the  king  could  propose  the  law.  In 
those  days  the  Commons  petitioned  the  monarch,  in  the 
words  of  the  bill  which  they  wished  to  become  a  law  ; 
and  even  the  form  of  royal  assent  which  is  now  used, 
"the  king  wills  it,"  indicates  the  ancient  combination  of 
the  proposing,  and  the  enacting  power  in  the  crown. 

We  are  so  accustomed  in  our  American  life  to  the  spec- 
tacle of  any  member  of  a  State  legislature,  or  of  Congress, 
who  has  a  particular  idea  which  he  wishes  embodied  in 
a  law,  framing  a  bill  for  himself,  introducing  it  in  the 
body  of  which  he  is  a  member,  and  if  possible,  persuad- 
ing the  majority  to  adopt  it,  that  we  are  apt  to  assume  it 
is  the  only  way  in  which  representative  government  can 
be  carried  on  ;  but  for  long  periods,  and  in  many  coun- 
tries even  now,  a  parliamentary  system  has  been,  and  is 
practiced,  in  which  the  representatives  merely  assent  to,  or 
reject  the  project  of  laws  prepared  by  the  head  of  the  gov- 
ernment. In  effect,  this  is  the  case  in  Great  Britain  to- 
day, with  relation  to  all  questions  of  national  import- 
ance. The  old  power  of  the  monarch  to  prepare  the  law 
and  propose  it  to  parliament  is  now  exercised  by  the 
cabinet,  which  consists,  as  we  know,  of  the  leaders  of  the 
party  in  power  for  the  time  being.  They  prepare  the 
law,  introduce  it  to  the  Commons,  and  the  obedient 
majority  approves  it.  The  single  member  of  the  house 
has  the  right,  with  the  leave  of  the  house,  to  offer  any 
bill  he  pleases,  but  it  is  a  barren  privilege,  when  party 
questions  are  up  ;  the  initiating  power  is  then,  practically, 


1 88     .  POLITICS. 

solely  in  the  hands  of  the  few  leaders,  and  sometimes  the 
single  leader  of  the  party.  It  is  not  to  be  supposed  that 
any  bill,  for  instance,  on  the  Irish  land  question,  would 
have  been  received  in  the  House  of  Commons  in  1881, 
except  from  Mr.  Gladstone,  or  one  of  his  cabinet  with 
his  sanction.  This  practice  is  one  of  the  distinguishing 
features  between  party  government  in  Great  Britain  and 
this  country.  The  causes  of  this  difference,  we  shall  dis- 
cuss later.  A  point  to  be  noted  is,  that  where  the  right  to 
propose  the  law  is  in  one  person  or  department,  and  the 
mere  right  to  approve  or  reject  is  in  another,  the  political 
system  where  such  is  the  case  is  in  a  transition  stage,  and 
not  in  a  condition  of  equilibrium.  It  is  manifest  that 
under  these  circumstances,  there  must  be  a  conflict 
between  departments  of  the  government.  The  creative 
power,  which  is  the  effective  one,  the  one  most  eagerly 
sought  for,  and  without  which  needed  changes  cannot  be 
accomplished,  must  be  supplemented  by  the  ability  to  for- 
mulate the  power  into  a  command  in  order  to  insure  per- 
fect harmony  in  administration.  Most  Continental  na- 
tions are  now  going  through  the  transition  stage  between 
absolutism  and  representative  democracy.  We  must  not 
be  misled  by  name  and  forms  ;  by  the  "  dignified  parts  " 
of  a  system.  We  must  go  below  these,  and  inquire  where 
is  the  balance  of  power  ?  Let  us  again  look  at  the  con- 
ditions in  the  new  German  Empire,  because  they  illus- 
trate quite  distinctly  the  conflict  alluded  to. 

The  constitution,  as  previously  remarked,  enacts  that 
the  right  to  prepare  the  laws  pertains  to  the  Emperor. 
It  is  further  provided  that  the  Bundesrath,  or  federal 
council,  shall  take  action  upon  the  measures  to  be  pro- 
posed to  the  Reichstag.  This  latter  body,  it  is  true,  may 
propose  a  law  by  way  of  petition  to  the  Bundesrath  ; 
but  that  body  is  not  compelled  to  act  on  the  proposal. 


THE   INITIATIVE  -  IN   LEGISLATION.  189 

The  Reichstag  is  elected  by  universal  suffrage  ;  so  that  we 
see,  on  one  side,  the  crown  proposing  bills  to  a  popular 
parliament,  and  the  latter  merely  saying,  yes,  or  no,  to 
them.  Naturally,  out  of  this,  there  is  a  constant  recurrence 
of  strife.  In  the  language  of  diplomacy,  the  relations 
between  the  two  ends  of  the  system  are  always  more  or 
less  strained.  A  man  like  Bismarck  may  give  more  em- 
phasis to  the  antithesis,  which,  however,  is  outside  of  the 
man  ;  it  is  in  the  system.  We  may  expect,  therefore,  in 
Germany,  continuous  movement  ;  whether  it  will  be  for- 
ward to  a  combination  of  the  two  powers  in  the  Reich- 
stag, or  back  to  the  monarch  ;  or,  whether  it  will  be  ac- 
complished peacefully,  or  after  bloodshed,  cannot  of 
course  be  predicted.  I  It  is  clear  that  the  present  division 
of  powers  promises  only  temporary  repose,  f  The  whole 
set  of  political  power,  at  this  day,  is  towards  that  branch 
of  the  administration  in  every  European  country,  which 
most  immediately  represents  the  body  of  the  people  ; 
and  hence,  we  may  safely  assume  that  the  Reichstag,  if 
the  Imperial  system  continues,  will  gain  in  power  ;  that 
its  voice  in  the  proposition  of  laws  will  be  more  and  more 
listened  to. 

This  power  to  propose  laws,  and  the  power  to  adopt 
them,  though,  as  we  know,  separable  in  the  practice  of 
many  countries,  is  essentially  so  single  in  its  nature  that 
when  divided  into  the  two  parts,  tends  always  to  become 
united  in  a  single  person,  or  the  same  governmental  de- 
partment. The  absolute  veto  power  in  the  monarch 
indicates,  in  the  system  where  it  exists,  the  same  division 
of  the  two  powers  spoken  of,  as  in  the  system  where  the 
initiative  is  in  the  monarch,  and  the  assembly,  or  parlia- 
ment, approves  or  rejects.  We  find,  therefore,  a  political 
system  to  be  in  the  transition  s'age,  where  the  absolute 
veto  exists  and  is  practiced.  Legally,  the  monarch  of 


190  POLITICS. 

Great  Britain  may  veto  an  act  of  parliament,  but  in  fact, 
the  right  is  not  exercised,  and  has  not  been  since  1707, 
because  the  balance  of  power,  or  rather  the  once  separated 
powers  of  proposing  and  approving  the  laws,  have  been 
finally,  in  practice,  united  in  parliament. 

In  France,  as  we  have  seen,  the  President  cannot  veto 
a  law  passed  by  the  legislative  body.  Under  the  constitu- 
tion of  1852,  of  the  Second  Empire,  the  right  of  initiat-~ 
ing  the  laws  was  solely  in  the  Emperor  ;  but  when  liberal- 
ism gained  head,  and  it  could  no  longer  be  avoided,  he 
submitted  to  the  people  the  plebiscite  in  virtue  of  which 
the  modified  constitution  of  May,  1870,  was  adopted. 
This  gave  the  initiative  of  the  laws  to  the  three  branches 
of  the  government ;  the  Emperor,  the  Senate,  and  the 
Corps  Legislatif;  but  still  requiring  the  sanctioning  of 
them  by  the  Emperor.  Thus,  practically,  the  powers 
were  divided  as  before ;  while  the  lower  house  might 
initiate,  the  monarch  could  reject.  The  only  improve- 
ment gained  by  the  new  system  was  in  adding  to  the 
moral  force,  or  weight,  of  the  legislative  branch,  because 
it  requires  greater  courage  in  an  executive  to  veto  a  law 
absolutely  than  to  neglect  to  initiate  the  legislation  de- 
manded. The  veto  is  an  open  affirmative  act  of  opposi- 
tion to  the  will  of  the  representatives,  while  the  omission 
to  propose  a  needed  law  is  merely  a  neglect  of  duty  ; 
and  the  human  mind  is  so  constituted  that  action  im- 
presses the  imagination  more  vividly  than  inaction. 

The  constitution  of  the  United  States  provides  that  : 
11  all  bills  for  raising  revenue  shall  originate  in  the  House 
of  Representatives  ;  but  the  Senate  may  propose,  or  con- 
cur with  amendments,  as  on  other  bills."  This  exclusive 
power  of  initiating  laws  for  supplying  money  to  carry  on 
the  government  gives  the  command  of  position  to  the 
lower  house  of  Congress  ;  for  confessedly  in  modern  days, 


THE  INITIATIVE   IN   LEGISLATION.          19! 

a  government  will  very  soon  fall  to  pieces  without  taxa- 
tion. At  the  same  time,  it  must  be  conceded  that,  as 
the  President  can  interpose  his  qualified  veto  to  the 
revenue  bill,  there  is  a  separation  of  the  two  powers  of 
initiation  and  approval.  With  reference  to  revenue  bills, 
the  President  does  not  stand  in  precisely  the  same  attitude 
that  he  does  with  reference  to  other  proposed  legislation. 
In  other  cases,  both  the  Senate  and  the  House  can  in- 
itiate, and  the  President  in  his  assent  to  the  measure, 
merely  adds,  or,  as  it  were,  votes,  as  we  have  seen,  the 
number  of  votes,  or  quantity  of  power,  represented  by 
the  number  between  the  majority  of  the  two  houses 
which  passed  the  bill,  and  the  two-thirds  necessary  to 
overcome  a  veto.  But  in  the  case  of  the  revenue  bill, 
the  House  may  initiate  a  law,  which  the  Senate  by  uniting 
with  the  President  may  absolutely  veto.  It  is  true,  this 
absolute  negative  may  be  pronounced  as  to  any  bill  orig- 
inating in  the  House  of  Representatives ;  but  this  would 
have  no  special  significance,  because,  in  effect,  the  two 
houses  are  one  body  in  such  cases,  with  the  form  of 
deliberating  separately,  and  in  succession  upon  a  measure 
which,  indifferently,  may  have  originated  in  either.  As 
to  revenue,  however,  the  functions  of  the  houses  are  dis- 
tinct ;  one  has  a  power  which  the  other  has  not,  and  con- 
sequently when  the  Senate  alone,  or  in  combination  with 
the  President,  can  absolutely  veto  the  affirmative  action 
of  the  initiating  body,  then,  as  to  that  function,  there  is 
clearly  a  separation  of  the  power  of  legislation  into  two 
parts,  and  consequently,  as  to  that  function,  the  system 
is  in  the  transition  stage. 

Here  again,  the  practical  working  of  the  British  con- 
stitution has  united  these  two  powers  in  the  House  of 
Commons.  The  Lords,  it  is  true,  have  the  right  to  reject, 
though  they  cannot  amend  supply  bills ;  but  this  privilege 


IQ2  POLITICS. 

of  rejecting  has  been  substantially  abandoned,  so  that,  in 
effect,  the  ruling  party  proposes,  and  also  agrees  to  the 
revenue  measures. 

As  above  remarked,  the  initiative  power  in  law-mak- 
ing is  the  creative  force  in  the  politics  of  a  country.  It 
has  under  its  control  all  the  possibilities  of  the  future, 
and  is  the  central  lever  which  must  be  grasped  by  the 
person  or  body  that  would  control  the  state. 

In  our  American  system,  the  initiatory  power  is  limited 
and  defined  by  the  Constitution.  The  powers  of  Congress 
are  enumerated.  Eighteen  sections  state  what  this  body 
can  do,  and  eight  what  it  cannot  do. 

In  addition,  there  are  the  limitations  imposed  by  the 
articles  embodying  the  clauses  concerning  personal  rights 
and  privileges.  The  range  of  legislation  is  much  wider 
in  those  Continental  countries  which  have  written  con- 
stitutions, because  in  none  of  them  are  personal  rights 
and  privileges  so  carefully  guarded  as  in  Great  Britain 
and  the  United  States. 


CHAPTER  XV. 

DISTRIBUTION    OF    POWERS. 

THE  separation  of  a  government  into  three  branches, 
the  executive,  legislative  and  judicial,  is  not  a  necessary 
condition  of  free  institutions  ;  it  is  simply  a  convenient 
and  natural  specialization  of  the  functions  which  are  devel- 
oped as  a  nation  grows  in  numbers  and  in  the  volume  of 
its  business.  In  the  nature  of  government,  the  will  or 
law-making  power  must  be  superior,  and  the  executive 
power  subordinate.  This  necessarily  must  be  so,  because 
the  will  must  first  express  itself  before  the  act  willed  can 
be  performed.  In  a  highly  developed  political  system,  a 
law  is  first  formulated,  and  then  the  designated  function- 
ary executes  it.  The  whole  circle  of  governmental 
activity  is  comprised  in  command  and  performance.  That 
the  same  person  both  wills  and  commands  through  a  law, 
and  also  executes  the  law,  in  no  wise  affects  the  essential 
fact  of  the  duality  of  the  processes,  and  the  further  fact  that 
the  command  must  precede  the  action  which  is  commanded 
to  be  done.  Hence  that  department  of  any  political 
system  which  expresses  the  volition  of  the  state,  is  the 
central  and  superior  power  in  the  state.  The  ministers 
or  functionaries  who  obey  this  volition  are  merely  its 
servants. 

The  tendency  of  civilization  is  towards  the  specializa- 
tion of  functions  ;  in  enconomical  affairs  to  division  of 
labor  ;  in  political  administration  to  the  separation  of  the 
law-making  department,  from  the  departments  which  ex- 
9 


194  POLITICS. 

ecute  the  laws.  If  this  differentiation  is  carried  out  to 
its  extreme  limits,  one  set  of  men  will  be  exclusively  en- 
gaged in  formulating  and  expressing  the  will  of  the  na- 
tion in  laws  ;  another  in  executing  them,  while  a  third 
will  occupy  themselves  in  judging  of  individual  cases  of  in- 
fractions of  the  laws  or  of  disputes,  to  the  adjudication 
of  which  the  laws  are  to  be  applied.  There  is,  thus, 
in  the  course  of  time,  partly  in  consequence  of  the  in- 
crease of  the  business  of  government,  partly  through  the 
consolidation  of  antagonistic  social  forces,  an  assumption 
by  different  individuals  of  the  law-making,  the  law-execut- 
ing, and  the  law-judging  functions.  The  separation  and 
distribution  of  these  various  functions  to  different  in- 
dividuals is  only  for  the  convenient,  practical  working 
of  the  government  ;  and  when  constitutional  writers  in- 
sist that  a  division  of  government  into  three  departments, 
the  executive,  legislative  and  judicial,  is  of  the  very 
essence  of  free  institutions,  they  put  mere  form  for  sub- 
stance. It  is  by  no  means  incompatible  with  the  liberty 
of  the  citizen  that  the  law-making  body  should  be  also 
the  executive  body,  and  even  the  judicial  body. 

We  see  in  the  actual  working  of  the  British  system  a 
practical  consolidation  of  the  legislative  and  executive 
functions  in  the  dominant  party  in  the  House  of  Com- 
mons. The  cabinet,  which  is  no  more  than  a  committee 
of  this  party,  prepares  legislation  of  national  moment, 
obtains  the  assent  of  the  party  to  it,  and  then  executes  it. 
In  truth,  it  may  be  asserted,  that  the  development  of 
government  among  civilized  peoples,  as  the  nation  be- 
comes homogeneous,  is  towards  the  concentration  of  the 
legislative  and  directing,  executive  functions  in  the  same 
person  or  body  of  persons.  The  details  of  execution, 
the  subordinate  work,  must  of  course  be  done  by  a  mul- 
titude of  persons,  who  for  convenience  of  administration, 


DISTRIBUTION  OF  POWERS.  195 

must  be  divided  into  departments,    boards,   and  single 
offices. 

Even  Montesquieu  reasons  in  a  circle  when  discussing 
the  necessity  of  the  separation  of  powers.  He  asserts  that 
when  the  executive  and  legislative  powers  are  vested  in 
the  same  person  or  the  same  body,  there  is  no  liberty, 
"because,"  as  he  says,  "it  is  to  be  feared  that  the  same 
monarch,  or  the  same  senate,  might  make  tyrannical  laws 
in  order  to  execute  them  tyrannically."  And  he  further 
adds  :  "  There  is  no  liberty  if  the  power  to  judge  is  not 
separated  from  the  legislative  and  the  executive  power," 
because,  as  he  continues  :  "If  it  were  joined  to  the  legis- 
lative power,  the  power  over  the  life  and  liberty  of  the 
citizen  would  be  arbitrary,  for  the  legislator  would  be  a 
judge. "  *  It  is  obvious  that  whatever  of  tyranny  there  may 
be  will  exist  in  the  law  itself,  and  not  in  its  execution. 
If  Congress  passes  an  act,  supposing  it  to  have  the  con- 
stitutional power,  that  every  pauper  shall  be  executed, 
the  tyrannical  act  is  complete  ;  nothing  is  added  to  or 
taken  from  the  tyranny  through  the  obedience  of  the  sub- 

*  "  Lorsque  dans  la  meme  personne  ou  dans  le  meme  corps 
de  magistrature  la  puissance  legislative  est  reunie  a  la  puissance 
executrice,  il  n'y  a  point  de  liberte,  parce  qu'on  peut  craindre  que 
le  meme  monarque  ou  le  meme  senat  ne  fasse  des  lois  tyranniques 
pour  les  executer  tyranniquement.  II  n'y  a  point  encore  de  liberte 
si  la  puissance  de  juger  n'est  pas  se'paree  da  la  puissance  legis- 
lative et  de  1' executrice.  Si  elle  etoit  jointe  a  la  puissance  legisla- 
tive, le  pouvoir  sur  la  vie  et  la  liberte  des  citoyens  seroit  arbitraire  ; 
car  le  judge  seroit  legislateur.  Si  elle  etoit  jointe  a  la  puissance 
executrice,  le  juge  pourroit  avoir  la  force  d'un  oppresseur.  Tout 
seroit  perdu  si  le  meme  homme,  ou  le  meme  corps  des  principaux, 
ou  des  nobles,  ou  du  peuple,  exercoient  ces  trois  pouvoirs  :  celui 
de  faire  des  lois,  celui  d'executer  les  resolutions  publiques,  et  celui 
de  juger  les  crimes  ou  les  differends  des  parti culiers." — De  L  Esprit 
des  Lois.  Livre  xi.  Chap.  vi. 


196  POLITICS. 

ordinate  functionary  in  carrying  out  the  law.  Its  odious- 
ness  may  be  more  palpable  to  the  senses  because  of  the 
execution  of  some  particular  pauper.  And  so,  a  law  may 
be  arbitrary  in  and  of  itself;  its  application  by  the  judge 
to  a  particular  case  in  no  wise  alters  its  character,  nor  does 
it  appear  that  it  is  any  more  or  less  arbitrary  because  the 
same  person  may  be  first  a  legislator  and  then  a  judge. 
It  may  be  said  here,  upon  this  last  point,  in  passing,  that 
the  reason  why,  in  a  country  where  legislative  powers 
are  limited  by  a  written  constitution,  the  judge  should 
not  at  the  same  time  be  a  legislator,  is  not  because 
he  might  be  more  arbitrary,  but  because  he  might, 
through  pride  of  opinion,  be  disposed  to  decide  a  law 
which  he  had  had  a  voice  in  passing  not  to  be  in  conflict 
with  the  constitution  ;  and  because  he  would  be  indis- 
posed to  hold  that  he  had  violated  his  duty  when  a  legis- 
lator. 

The  confusion  of  thought  on  the  subject  of  the  separa- 
tion of  powers  grows  out  of  the  failure,  when  actually 
contemplating  its  government,  to  separate  the  will  of  the 
nation  from  the  force  of  the  nation.  There  is  no  diffi- 
culty in  the  conception  ;  the  trouble  is  to  keep  it  always 
before  us  when  looking  at  the  practical  working  of  any 
system.  We  are  apt  to  have  an  ideal  in  our  minds,  with 
well-defined  parts,  but  we  discover  very  soon  that  it  sel- 
dom fits  in  with  any  particular  system.  In  every  govern- 
ment the  will  power  is  really  distributed,  in  greatly  varying 
degrees,  over  every  part,  and  so  is  the  national  force. 
There  cannot,  in  the  nature  of  things,  be  any  conflict 
between  the  will  power  and  the  executive  power,  because 
the  one  is  superior  to  and  distinct  from  the  other,  though 
they  may  both  reside  in  the  same  person.  When,  there- 
fore, there  is  talk  about  a  conflict  between  the  executive 
and  legislative  branches  of  a  government,  it  means  really 


DISTRIBUTION   OF  POWERS.  197 

that  the  one  is  attempting  to  wrest  from  the  other  some 
portion  of  the  national  will  power  which  it  is  exercising. 
It  means  that  in  that  government  there  has  not  been  an 
actual  separation  of  functions ;  that  the  power  to  make 
commands  has  not  been  exclusively  devolved  upon  one 
person,  or  organized  body  of  persons,  and  the  duty  of 
executing  these  commands  upon  another.  The  long  dis- 
pute between  King  and  Commons  was  no  more  than  the 
working  out  of  this  differentiation.  It  is  the  dispute 
which  is  going  on  in  every  country  where  the  monarch 
retains  a  certain  portion  of  the  legislative  power,  and  the 
representatives  of  the  people  the  remainder  ;  as,  for  exam- 
ple, in  those  instances  which  have  been  referred  to,  where 
the  initiative  is  in  the  monarch,  and  only  the  right  of  ap- 
proval or  rejection  in  the  representative  branch. 

Our  Federal  Constitution  attempted  a  stricter  division 
than  can  be  found  elsewhere,  which,  however,  yet  it  is  not 
so  complete  as  to  exclude  conflict.  It  is  divided  into 
three  parts,  which  provide  for  the  legislative,  the  executive, 
and  judicial  departments.  It  says:  "The  executive 
power  shall  be  vested  in  a  president  of  the  United  States  of 
America;  "  and  also  :  "he  shall  take  care  that  the  laws 
be  faithfully  executed." 

This  is  very  clear.  It  limits  him  to  the  execution  of 
what  the  legislative  department  has  commanded.  As  the 
executive  officer  of  the  nation,  the  President  would  be  its 
spokesman  with  foreign  powers  ;  and  the  chief  representa- 
tive of  the  national  force  both  within  and  without.  The 
field  of  conflict,  however,  is  prepared  when  the  President 
is  also  made  a  legislator,  through  the  effect  of  his  qual- 
ified veto,  and  through  his  right  to  initiate,  and  with  the 
aid  of  the  Senate,  to  adopt  treaties  which  shall  become 
the  supreme  law  of  the  land.  At  this  point,  there  is  a 
union  of  the  functions  of  two  theoretically  distinct  depart- 


198  POLITICS. 

ments,  which  a  priori  should  produce  conflict,  and  which 
in  fact  have  produced  conflict.  On  the  other  'h.ind,  the 
executive  competency  is  seriously  impaired  by  the  inter- 
position of  the  Senate  in  the  confirmation  of  purely  execu- 
tive officers,  thus  investing  one-half  of  the  legislative  body 
with  the  power  to  interfere  in  the  executive  department, 
by  dictating  who  shall  be  the  instruments  through  whom 
the  President  shall  take  care  that  the  laws  are  faithfully 
executed. 

It  is  intended,  however,  at  this  moment  simply  to  call 
attention  to  these  variations  from  the  theory  of  a  strict 
separation  of  powers,  and  also  to  call  attention  to  the  sub" 
ordination  in  fact  of  the  executive  officers,  to  the  legisla- 
tive branch,  except  in  those  matters  where  there  is  a 
division  of  the  willing  power,  and  that  it  is  just  at  those 
points  that  there  is  strife. 

The  judiciary,  under  our  system,  is  elevated  to  the  posi- 
tion of  a  distinct  department  in  the  constitutional  system, 
while  in  other  governments,  it  forms  no  part  of  the  polit- 
ical system,  but  confines  itself  to  the  interpretation  and 
application  of  the  laws,  in  cases  of  disputes  between  in- 
dividuals. 

When  there  is  a  written  constitution,  and  the  legislative 
power  is  limited  to  certain  enumerated  subjects,  the  ques- 
tion will  naturally  arise,  who  shall  determine  when  the 
occasional  will  of  the  nation  conflicts  with  its  permanent 
will  ?  If  the  decision  is  left  to  the  legislative  department, 
the  legislature  will  naturally,  by  construction,  extend  its 
powers.  And  again,  under  a  federal  system,  there  must 
be  some  one  to  determine  controversies  which  will  be  sure 
to  arise  between  State  laws  and  Federal  laws. 

In  the  constitution  of  the  German  Empire,  there  is  a 
somewhat  clumsy  contrivance  to  meet  this  requirement. 
It  provides  : 


DISTRIBUTION   OF  POWERS.  199 

"Article  76.  Disputes  between  the  different  states  of 
the  Union,  so  far  as  they  are  not  of  a  private  nature,  and, 
therefore,  to  be  decided  by  the  competent  courts,  shall  be 
settled  by  the  Bundesrath,  at  the  request  of  one  of  the 
parties.  Disputes  relating  to  constitutional  matters  in 
those  of  the  states  of  the  Union  whose  constitution  con- 
tains no  provision  for  the  settlement  of  such  differences, 
shall  be  adjusted  by  the  Bundesrath,  at  the  request  of 
one  of  the  parties  ;  or,  if  this  cannot  be  done,  they  shall 
be  settled  by  the  legislative  power  of  the  Empire." 

This  clause  is  somewhat  obscure,  but  it  is  obviously 
based  upon  the  confederate  character  of  the  empire,  in 
which  the  states,  through  their  ambassadors  in  the  federal 
council,  agree  to  settle  their  disputes  by  friendly  arbitra- 
tion among  themselves.  Our  federal  system  is  more  than 
a  league  of  states ;  it  contains  a  central  government, 
which  is  in  daily  contact,  directly,  with  every  citizen,  and 
whose  laws  and  constitution  constitute  a  jurisdiction  to 
which  he  and  not  his  State,  is  immediately  subject. 

The  citizen  of  the  United  States  is  amenable  to  two 
jurisdictions,  the  Federal  and  the  State,  and  it  is  an  ad- 
mirable contrivance  to  furnish  a  tribunal  to  which  he  can 
appeal  when  his  rights  under  the  one  or  the  other  are  in 
question,  or  when  State  passion  or  prejudice  may  threaten 
them  because  he  is  a  resident  of  another  State,  or  because 
the  matter  in  controversy  is  within  admiralty  jurisdiction. 
Our  judicial  system  has  been  termed  the  balance-wheel 
in  both  the  Federal  and  State  governments.  Whatever  it 
may  be  figuratively,  in  fact  it  is  a  great  political  power.  \ 
Under  the  guise  of  interpreting  the  constitution  and  laws 
in  disputes  between  citizens,  it  is  constantly  laying  down 
rules  of  action  to  be  imposed  upon  future  legislative 
bodies.  It  prunes  and  revises  legislation,  and  thus 
hedges  about  and  limits  the  exercise  of  the  national  will 


2OO  POLITICS. 

in  its  expression  in  its  appropriate  department,  and  thus, 
in  effect,  usurps  a  portion  of  the  prerogatives  of  that  will. 

Theoretically,  courts  only  declare  what  the  law  is ;  but 
in  the  broad  and  somewhat  vague  regions  of  what  is 
known  as  the  "common  law,"  there  is  an  opportunity  of 
judicially  legislating,  which  courts  in  England  and  in 
the  United  States  have  embraced  ;  so  that  "judge- made- 
law  "  certainly  exceeds  all  other  in  volume.  It  may  be  this 
constant  tendency  on  the  part  of  common  law  courts  ac- 
tually to  make  new  laws,  under  the  assumption  of  only 
applying  old  ones,  has  developed  a  striking  difference  be- 
tween the  methods  of  legislation  in  English-speaking 
countries  and  continental  Countries. 

An  English  or  an  American  statute  goes  into  the 
fullest  details ;  every  possible  contingency  is  anticipated 
and  provided  for  ;  as  little  as  possible  is  left  to  discretion. 
The  result  is  that  our  courts  are  called  upon  to  listen  to 
the  most  minute  criticisms  of  acts  of  the  legislature,  and 
frequently  decide  cases  upon  the  collocation  of  a  phrase. 
It  may  be,  that  beyond  what  has  been  suggested,  a  further 
reason  for  this  disposition  can  be  found  in  the  strong  in- 
centive for  the  legislative  branch  to  draw  to  itself  the  ex- 
ercise of  the  whole  law-making  power,  and  its  reluctance 
to  concede  any  of  the  will-power  of  the  state,  or  any  in- 
dependent judgment,  to  another  branch  of  the  govern- 
ment. It  wishes  to  prescribe  everything.  It  is  in  part 
caused  by  the  frame  of  mind,  which  has  come  down  to 
us,  of  presuming  everything  in  favor  of  the  liberty  of  the 
subject  and  of  freedom  of  action,  and  hence  of  allowing 
only  the  positive  words  of  the  law  to  limit  them  in  any 
direction.  Out  of  this  conflict  between  the  judicial  and 
legislative  departments  has  sprung  the  growing  practice 
of  codifying  the  laws,  by  means  of  which  the  latter  depart- 
ment is  constantly  narrowing  the  field  in  which  the  former 


DISTRIBUTION  OF   POWERS.  2OI 

can  act.  On  the  contrary,  in  the  Continental  states  of 
Europe  the  statutes  are  mere  outlines,  furnishing  only 
general  directions  ;  the  details  are  left  to  be  worked  out 
through  the  rules  and  procedure  of  the  executive  officers. 
Take,  as  an  illustration,  the  law  passed  by  the  Senate 
and  Chamber  of  Deputies  of  France,  in  December,  1880, 
concerning  the  secondary  education  of  girls.  It  consists 
of  nine  short  sections,  establishing  no  more  than  the  out- 
lines of  a  new  system.  The  same  subject  would  have 
been  elaborated  by  an  American  legislature  into  a  statute 
copious  in  details,  of  at  least  five  times  the  length  of  this 
one.  The  French  statute,  however,  is  merely  a  skeleton. 
It  will,  in  practice,  be  filled  out  by  regulatior.s  prescribed 
by  the  Bureau  of  Education.  The  French  method  in  this 
regard  grows  out  of  the  fact  that,  until  recently,  the  whole 
power  of  the  state  was  in  the  monarch,  who  announced 
his  will  in  the  most  general  form,  leaving  to  his  subordi- 
nates to  attend  to  details.  Now  his  power  has  gone  over 
to  the  legislature,  which,  however,  has  not  yet  taken  to  itself 
the  functions  of  the  monarch's  subordinates.  In  this  re- 
spect there  is  still  a  practical  division  of  the  will  power, 
which  will  no  doubt,  if  legislative  supremacy  continues  in 
France,  concentrate  more  and  more  in  the  Chamber  of 
Deputies  and  Senate.  At  the  same  time,  the  traditional 
habit  of  mind  there,  as  in  our  country,  has  much  to  do 
with  the  French  style  of  framing  laws.  Those  presump- 
tions in  favor  of  the  liberty  and  innocence  of  the  subject, 
which  are  so  familiar  to  us  as  to  seem  a  necessary  part  of 
political  and  juridical  thought,  are  there  unfamiliar  to  the 
general  mind.  Moreover,  the  executive  has  hitherto  been 
so  overshadowing,  and  has  for  so  long  a  time  made  and 
construed  the  laws,  that  it  seems  natural  that  the  repre- 
sentative body  should  merely  sketch  them,  and  leave  the 
details  of  execution  to  be  accomplished  in  the  old  way. 
9* 


202  POLITICS. 

As  suggested,  it  is  really  a  division  of  legislative  power, 
and  as  the  representative  branch  becomes  more  and  more 
conscious  of  its  true  position  in  the  government  as  the 
possessors  of  the  balance  of  power,  it  will  more  and  more 
absorb  the  whole  will-power  of  the  state,  and,  by  degrees, 
elaborate  its  statutes,  so  as  to  leave  as  little  as  possible 
to  the  discretion  of  the  executive.  The  absence  of  a 
system  analogous  to  the  common  law,  and  the  practically 
large  share  of  the  executive  in  law-making,  has  reduced 
the  Continental  courts  to  a  subordinate  position,  especially 
as  compared  with  those  of  the  United  States. 


CHAPTER    XVI. 

THE    CONDITIONS    AND    TENDENCY    OF    NORMAL    POLITICAL 
GROWTH. 

A  POLITICAL  system  cannot  be  said  to  be  established  in 
a  normal  condition  until  all  parties  agree  upon  the  fund* 
amental  principles  of  government,  on  which  the  system 
should  be  founded. 

There  is  always  a  tendency  to  concentrate  the  supreme 
will  or  controlling  power  of  the  nation  at  some  point  in 
the  government,  and  to  draw  after  it,  necessarily,  the  ex- 
ecutive power,  which,  as  we  have  seen,  waits  upon  it.  It 
is,  however,  only  a  tendency.  The  history  of  every 
sovereign  political  community  shows  a  constant  series  of 
external  and  internal  events,  which  interfere  with  the 
normal  current  of  purely  political  development.  Every 
nation  is  a  growth  ;  usually  a  fusion  of  a  series  of  small 
communities,  which  retain  a  portion  of  their  original 
law-making  power,  but  transfer  the  superior  will  to  the 
larger  state.  As  we  have  seen,  local  and  finally  national 
institutions  take  their  peculiar  shapes  as  a  consequence  of 
this  fusion.  We  therefore  find,  especially  at  the  beginn- 
ing of  the  history  of  the  great  modern  nations,  a  mass  of 
heterogeneous  institutions,  customs,  and  laws.  But,  out 
of  this  confusion,  as  the  nation  grows  in  distinctness, 
there  is  a  concentration,  as  it  were,  of  the  national  will  ; 
that  is,  there  is  a  growing  submission  to  one  person,  or 
to  one  department,  as  the  exponent  of  the  national  will. 
But  as  social  forces  within  the  nation  distribute  and  re- 


204  POLITICS. 

distribute  themselves,  there  is  apt  to  accompany  the  move- 
ment a  shifting  of  the  balance  of  power  from  one  part 
of  the  social  organism  to  another.  In  this  latter  case, 
there  will  probably  be  a  dispute  as  to  the  foundation 
principles  of  the  government.  Such  a  dispute  must  first 
be  settled  before  there  can  be  normal  political  develop- 
ment. 

It  is  very  important  for  the  peaceful  living,  and  hence 
for  the  healthful  social  growth,  of  a  people,  that  there 
should  be  a  common  agreement,  not  only  as  to  the  form 
of  the  government,  but  also  as  to  the  general  methods 
of  adminstration.  Without  this  harmony  of  opinions, 
without  a  community  even  of  sentiment  in  this  respect, 
there  are  the  possibilities  of  violent  collisions  between 
parties,  because  they  will  be  divided,  not  upon  mere 
questions  of  expediency  in  legislation,  but  upon  the  fun- 
damental theories  as  to  how  the  government  should  be 
constituted. 

Two  questions  must  be  settled  in  the  nation  before 
the  danger  of  civil  war  is  removed.  First  :  the  form  of 
the  government  ;  that  is,  shall  it  be  monarchic,  or  oli- 
garchic, or  aristocratic,  or  democratic  ?  Second  :  in 
which  of  the  governmental  departments  is  the  ultimate 
power  lodged  ?  Until  these  questions  are  disposed  of,  it 
cannot  be  said  that  the  particular  nation  is  in  a  normal 
political  condition.  Its  social  development  may  be  the 
most  advanced  ;  its  administraton  of  private  law,  its 
methods  of,  and  efficiency  in,  preserving  order,  its  civil  and 
military  service  may  be  wise,  thorough,  and  economical, 
and  its  intellectual  life  may  move  upon  the  highest  plane, 
and  yet  it  may  be  in  a  politically  abnormal  condition. 
As  long  as  its  people  are  divided  on  the  form  of  its 
political  administration,  or  are  in  dissension  as  to  where 
in  the  governmental  framework  the  supreme  power  should 


CONDITIONS  OF  POLITICAL  GROWTH.       2Oj 

be  manifested,  so  long  is  there  danger  of  convulsions 
affecting  the  very  foundations  of  the  state. 

France  has  been  in  this  abnormal  condition  since  the 
breaking  out  of  the  Revolution  of  1789.  It  is  true  that, 
since  the  Franco-German  war,  the  largest  party  has  been 
in  favor  of  the  Republic  ;  but  there  are  strong  and  in- 
fluential bodies  of  the  people,  which  aim  to  revolutionize 
the  existing  form  of  government.  The  legitimists  would 
restore  the  Bourbons  t  )  the  throne,  which  of  course, 
means  a  return  to  the  mediaeval  idea  of  the  divine  right 
of  kings  and  to  the  concentration  of  power  in  the  king 
supported  by  the  old  aristocracy.  This  party  does  not 
profess  absolutism  ;  it  even  concedes  that  the  modern 
demand  for  constitutional  guaranties  must  be  respected, 
but  it  does  not  admit  that  the  lawfulness  and  continuance 
of  its  powers  depends  upon  the  consent  of  the  governed. 
Its  theory  is,  that  whatever  part  in  the  administration  is 
exercised  by  the  people,  is  a  concession  from  the  monarch. 
The  Orleanists,  on  the  other  hand,  would  introduce  the 
quasi-constitutional  methods  of  Louis  Philippe,  a  half- 
way resting-point  between  Bourbonism  and  republicanism. 
The  Imperialists  demand  a  centralized  personal  govern- 
ment, founded  on  universal  suffrage.  These  three  sec- 
tions are  really  revolutionary  parties  seeking  the  over- 
throw of  the  existing  regime,  and  until  they  disappear, 
and  the  bulk  of  the  people  are  finally  agreed  upon  the 
form  of  government,  there  will  be  abnormal  political  con- 
ditions in  France. 

Great  Britain,  on  the  other  hand,  presents  the  example 
of  a  country  all  of  whose  people  agree,  not  only  as  to  the 
form  of  the  government,  but  also  as  to  which  department 
of  it  shall  exercise  supreme  control.  Its  geographical 
position  and  social  conditions  have  been  such  as  to  per- 
mit a  steady,  or  nearly  continuous  political  evolution  for 


206  POLITICS. 

several  hundred  years.  For  over  six  centuries  it  has  had 
its  three  factors,  the  executive,  the  upper  house,  and  the 
lower  house,  and  we  may  add,  for  a  portion  of  the  time, 
its  independent  judiciary  rigidly  divided.  What  has  been 
the  result  ?  All  power  has  been  finally  concentrated  in 
the  House  of  Commons.  On  this  point  Frederic  Harrison 
recently  wrote  :  "In  the  course  of  centuries,  everything 
in  the  working  of  the  complex  machinery  of  this  nation 
has  become  concentrated  in,  or  absorbed  into,  the  House 
of  Commons.  The  House  has,  in  fact,  become  the  most 
gigantic  and  heterogeneous  bureau  that  the  world  ever 
saw.  *  *  *  This  conversion  of  one  of  the  two  legisla- 
tive chambers  into  an  irresponsible  executive  has  grown 
up  insensibly  and  gradually  out  of  two  main  functions, 
into  which  it  may  still  be  conveniently  grouped.  The 
first  is  the  time-honored  right  of  criticising  the  executive  ; 
the  other  is  the  modern  habit  of  giving  a  legislative  form 
to  purely  executive  details.  The  history  of  the  process 
is  one  of  the  most  curious  and  subtle  in  our  long  consti- 
tutional development.  One  sees  how  the  body,  which  was 
once  the  sturdy  petitioner  of  the  Plantagenets,  the  obse- 
quious tool  of  the  Tudors,  and  the  undaunted  opponent 
of  Stuart  misgovernment,  gradually  became  the  Mayor  of 
the  Palace  to  the  Hanoverian  Faineants,  and  now  in  this 
century  has  become  a  despot  more  autocratic  than  any 
Czar — a  despot  with  an  unbounded  power  of  meddling, 
and  an  inexhaustible  gift  of  prolixity."  * 

It  is  only  within  a  century,  or  rather  one  may  say,  dur- 
ing this  century,  that  the  centre  of  power  has  finally 
lodged  in  the  House  of  Commons  ;  and  less  than  a  cen- 
tury and  a  half  since  the  country  was  split  asunder  by  a 
dispute  over  the  succession  to  the  throne.  The  deposition 
of  James  II,  in  1688,  and  the  Declaration  of  Right, 
*  Nineteenth  Century,  Sept.,  1881,  pp.  318,  333. 


CONDITIONS   OF   POLITICAL   GROWTH.       2O/ 

which  recognized  and  legalized  the  accession  of  Wiliiam 
and  Mary  to  the  throne,  was  a  violent  breach  of  the  tradi- 
tions to  which  the  Stuarts  had  sought  to  give  additional 
force.  It  introduced  a  dynastic  question,  which  divided 
the  nation,  and  as  long  as  the  non-juring  party  was 
sufficiently  numerous  seriously  to  divide  public  opinion 
upon  the  duty  of  allegiance  to  the  occupant  of  the  throne  ; 
as  long  as  there  was  a  party  which  recognized  as  its 
sovereign  a  person  who  could  not  enter  the  country,  ex- 
cept as  an  invader,  there  could  not  be  said  to  exist  nor- 
mal political  conditions. 

The  Revolution  of  1688,  moreover,  established  the 
doctrine  that  the  English  government  rests  on  the  con- 
sent of  the  governed.  It  is  interesting  to  observe  how 
Burke  in  his  "Reflections  on  the  Revolution  in  France  " 
labors  almost  fiercely  to  disprove  the  assertions  of  his 
adversary,  Dr.  Price,  that  by  the  Revolution  of  1688,  the 
people  of  England  acquired  three"  fundamental  rights  :  i. 
the  right  to  choose  their  own  governors.  2.  the  right  to 
cashier  them  for  misconduct  ;  and  3,  the  right  to  frame  a 
government  for  themselves.  He  endeavors  to  show  that 
there  was  only  a  small  and  temporary  deviation  from  the 
strict  order  of  succession  ;  that  it  was  an  act  of  necessity, 
and  merely  a  provision  by  parliament  for  an  emergency. 
We  must  recollect  in  reading  this  strange  reasoning,  that 
at  the  time  when  these  Reflections  were  written  the  com- 
prehensive, philosophical  perception  of  Burke  in  political 
things,  was  sadly  obscured  by  his  bitter  hatred  of  the  new 
doctrines  of  equality  and  fraternity,  and  by  the  barbarities 
of  the  French  revolutionists. 

It  has  been  the  good  fortune  of  England  that,  for  so 
many  centuries,  there  has  been  a  substantial  agreement 
among  its  people  as  to  the  form  of  its  government.  The 
departments  and  forms  of  government  have  undergone 


208  POLITICS. 

but  little  alteration  since  very  early  times,  but  gradually 
the  centre  of  governmental  power  has  gone  from  one  ex- 
treme to  the  other. 

The  political  evolution  in  a  nation  appears  to  be  always 
towards  the  concentration  of  the  law-making  power  and 
the  control  of  its  physical  force,  or  the  executive  power, 
in  one  and  the  same  person  or  department. 

If  this  be  so,  then  the  attempt  to  create  an  artificial 
system  of  checks  and  balances  in  government,  as  was  the 
case  in  framing  our  federal  constitution,  is  futile,  because 
this  constant  tendency  to  the  lodgment  of  all  power  in 
some  particular  part  of  the  system  will  either  entirely 
destroy  resistance,  or,  what  is  more  likely,  will  direct  the 
forms  to  other  purposes  than  those  originally  intended. 
And  it  is  very  fortunate  for  a  nation  if  its  government  is 
flexible  enough  to  permit  the  centre  of  gravity  to  pass 
through  old  forms  from  one  department  to  another 
without  civil  war. 

In  tracing  the  history  of  a  government,  one  is  often 
struck  with  the  fact,  that  at  one  period,  the  balance  of 
power  is  in  one  person,  or  branch  of  the  administration, 
and  at  another,  in  another  ;  and  that  it  is  difficult  to 
point  out  the  steps  by  which,  in  the  interim,  the  power 
has  been  absorbed  by  the  one,  and  lost  by  the  other. 
And  again,  that  all  the  time  the  same  offices  and  depart- 
ments continue  apparently  unchanged.  It  is  related 
that  Lycurgus  constituted  a  Spartan  senate,  whose  mem- 
bers voted  in  conjunction  with  the  two  kings  who  sat 
with  it,  and  that  with  this  there  were  combined  periodical 
assemblies  of  the  Spartan  people,  though  no  discussion 
was  permitted  at  these  assemblies,  as  their  functions  were 
limited  to  the  simple  acceptance  or  rejection  of  the  pre- 
vious resolves  of  the  senate.  It  appears  that  about  a  cen- 


CONDITIONS   OF   POLITICAL   GROWTH.      209 

tury  after  the  establishment  of  this  system,  a  change  was 
made  by  which  an  executive  directory  of  five  Ephors, 
could  be  chosen  from  the  body  of  the  citizens.  While  it  is 
not  certain  what  were  the  original  powers  conferred  upon 
this  new  body,  the  subsequent  history  of  Sparta  shows 
that  the  Ephors  gradually  drew  to  themselves  the  most 
extensive  and  commanding  functions  of  the  state,  and 
limited  "the  authority  of  the  kings  to  little  more  than 
the  exclusive  command  of  the  military  force/'* 

In  the  Continental  states  of  Europe,  the  absorption  of 
power  by  the  monarchs,  and  its  gradual  re-distribution  in 
this  century  to  the  people,  is  marked,  it  is  true,  by  occasional 
violent  transitions,  but  still,  on  the  whole,  in  the  long 
course  of  the  years,  the  change  has  been  accomplished 
through  a  multitude  of  petty  encroachments,  first  on  one 
side  and  then  on  the  other.  In  England,  as  already  re- 
marked, the  movement  from  one  part  of  the  system  to  the 
other  has  grown  up  "  insensibly."  The  causes  which 
are  always  and  everywhere  operating,  are  to  be  found  in 
certain  qualities  of  human  nature  already  referred  to. 
The  corporate  impulse,  like  the  individual  impulse,  is 
constantly  in  the  direction  of  enlarging  jurisdiction.  If 
we  look  closely  we  shall  see  that,  almost  without  excep- 
tion, the  conflicts  between  officers  and  departments  of 
government  are  over  the  exercise  of  the  will-power,  or 
power  to  make  effective  commands,  and  seldom,  if  ever, 
over  the  effort  to  obey  commands,  or  the  mere  executive 
power.  An  individual,  or  the  body  of  individuals,  has 
the  right  to  make  a  law  or  regulation  on  a  given  subject, 
and  another  person  has  a  right  to  make  a  rule  or  com- 
mand, which,  by  construction  can  extend  over  the  same 
subject.  Here  is  an  opportunity  for  strife,  and  in  the 
end,  one  or  the  other  will  be  sure  to  dominate. 
*  Grote,  "  History  of  Greece,"  II.,  345-347. 


210  POLITICS. 

Of  course,  it  cannot  be  asserted  that  there  is  always 
open,  or  constant  strife.  On  the  contrary,  more  com- 
monly, one  official  or  department,  little  by  little  presses 
back  and  circumscribes  another,  because,  possibly  it  pos- 
sesses more  personal  vigor,  or  more  persistency,  or  greater 
opportunities.  No  doubt,  in  the  division  of  power  in  the 
German  Empire,  between  the  Emperor  and  the  Federal 
Council  on  the  one  side,  and  the  popular  Reichstag  on  the 
other,  the  personal  weight  of  Bismarck  may  keep  the  bal- 
ance on  the  side  of  the  crown.  But  when  the  sturdy 
Chancellor  disappears  from  the  scene,  it  is  possible  that  a 
weaker  successor  may  not  be  able  to  hold  it  there,  against 
the  steady  pressure  of  four  hundred  or  more  representa- 
tives of  the  people,  who  are  constantly  seeking  to  grasp 
power.  The  solution  of  the  question  as  to  which  branch 
of  the  administration  will  be  likely  finally  to  be  dominant 
in  a  constitutionally  free  system  controlled  by  political 
parties,  depends  upon  which  has  the  command  of  position. 
This  command  of  position  is  owing  to  so  many  and  such 
a  variety  of  conditions,  that  it  cannot  be  accurately  de- 
fined in  advance.  We  must  examine  the  particular  gov- 
ernment by  the  light  of  the  principles  already  discussed, 
in  order  to  discover  the  point  to  which  power  naturally 
tends.  The  law-making  power  of  the  United  States  is 
distributed  among  three  departments.  As  we  have  seen, 
the  President  has  a  share,  both  by  means  of  his  treaty- 
making  capacity,  and  by  means  of  his  qualified  veto ;  the 
two  houses  of  Congress  have  a  large  share,  and  even  the 
Courts  are  really  law-makers,  though  theoretically,  only 
its  interpreters. 

The  first  business  devolving  on  Congress  was  to  or- 
ganize the  administration  of  affairs.  The  attempt  was 
made,  and  very  successfully,  to  define  precisely  the  limits 
of  the  several  departments.  As  early  as  1 793,  the  ques- 


CONDITIONS  OF  POLITICAL  GROWTH.       211 

tion  came  up  as  to  the  separate  functions  of  two  of  them. 
An  act  of  Congress  concerning  pensions,  imposed  certain 
duties  upon  circuit  courts,  and  made  their  decisions 
revisable  by  the  Secretary  of  War,  and  afterwards  by  Con- 
gress. The  chief  justice  and  the  justices  of  the  New 
York  circuit,  and  the  Pennsylvania  and  North  Carolina 
circuit  judges,  declined  to  act,  on  the  ground  that  the 
duties  were  not  judicial,  and  therefore  could  not  be  im- 
posed upon  the  judicial  branch.  They  all  agreed  that, 
by  the  Constitution,  the  government  of  the  United 
States  is  divided  into  three  distinct  and  independent 
branches,  and  that  it  is  the  duty  of  each  to  abstain  from 
and  oppose  encroachments  on  the  others.  Theoretically 
this  rule  has  never  been  controverted  ;  but,  as  we  know, 
the  theory  and  practice  of  a  government  are  frequently 
widely  different. 

The  important  question,  already  referred  to,  as  to  the 
power  of  the  President  to  remove  an  officer  appointed 
by  him,  without  the  consent  of  the  Senate,  was  only  de- 
cided by  the  casting  vote  of  the  Vice- President,  John 
Adams,  in  the  Senate.  At  that  early  day,  it  was  merely 
a  theoretical  question  ;  but  later,  at  the  close  of  the  civil 
war,  when  it  became  a  practical  one,  and  party  passions 
were  high,  Congress  passed  the  Tenure  of  Office  Act  of 
1867,  which  has  turned  the  Senate  into  an  oligarchy  for 
conferring  official  appointments. 

Another  important  question  arose  during  Washington's 
term.  Jay's  treaty  with  England  was  ratified  by  the  Senate 
in  1796,  and  Washington  proclaimed  it  as  the  law  of 
the  land.  The  treaty  was  very  unpopular,  and  a  major- 
ity of  the  House  of  Representatives  were  bitterly  opposed 
to  it,  and  to  the  administration.  A  motion  was  made, 
calling  on  the  President  for  his  instructions  to  Jay,  with 
the  correspondence  and  other  documents  relating  to  the 


212  POLITICS. 

treaty.  The  reason  advanced  by  the  mover  was,  that 
the  house  was  vested  with  a  discretionary  power  whether 
or  not  to  carry  the  treaty  into  execution.  It  was  claimed 
in  support  of  the  motion,  that  as  treaties  became  the 
law  of  the  land,  and  the  legislative  power  was  in  Con- 
gress, the  House,  as  the  branch  of  that  power,  had  a  voice 
in  the  enactment  of  every  law,  whether  by  treaty  or  when 
proposed  in  Congress  itself.  This  extreme  ground,  how- 
ever, was  not  strongly  urged.  The  more  reasonable  one 
was  taken,  that,  as  to  those  provisions  which  required  the 
aid  of  Congress  to  carry  them  out,  this  body  could 
furnish  aid  or  not,  as  it  pleased  and  thus  control  the  treaty. 

Washington  declined  to  furnish  the  demanded  papers, 
upon  the  explicit  ground  that  the  House  of  Representa- 
tives had  no  voice  in  the  treaty-making  power,  and  he  in- 
sisted in  his  message,  "  that  the  boundaries  fixed  by  the 
Constitution  between  the  different  departments  should  be 
preserved. " 

The  practice,  however,  has  become  well  established, 
notwithstanding  the  continued  reservation  of  the  right  to 
the  contrary,  for  the  executive  to  furnish  diplomatic 
papers  upon  the  call  of  the  House,  sometimes  even  while 
negotiations  are  pending  with  a  foreign  country.  The 
actual  power  of  the  House  of  Representatives,  in  refusing 
its  aid  to  enforce  treaties,  is  so  great  that  it  compels  the 
President,  in  negotiating  a  treaty  to  guide  himself  by  its 
temper  and  views.  This  furnishes  a  sort  of  moral  coer- 
cive power,  which  strengthens  the  dominating  attitude  of 
the  lower  house. 

The  purely  executive  functions  of  the  presidential 
office  can  be  so  guided  and  limited  as  to  be  substantially 
under  the  control  of  Congress.  As  commander-in-chief 
of  the  army  and  navy,  his  duties  can  be  accurately 
marked  out.  We  have  an  instance  of  the  extreme  point 


CONDITIONS   OF   POLITICAL   GROWTH.       213 

to  which  this  can  be  carried,  or  rather  attempted,  in  the 
Act  of  Congress,  in  the  time  of  Johnson,  requiring  the 
President  to  transmit  his  orders  through  the  general  of 
the  army,  who  could  not  be  removed  for  disobedience  to 
them  without  the  consent  of  the  Senate.  \His  cabinet 
can  even  be  kept  in  place  against  his  wish...)  Every  move- 
ment he  makes  in  the  direction  of  executive  duty  is  pre- 
scribed by  law.  He  is,  in  that  regard,  merely  the  chief 
servant  of  the  legislative  power.  It  is  at  the  points  where 
he  is  invested  with  a  portion  of  the  will  power  of  the 
nation  that  the  possibilities  of  struggle  for  dominance  can 
arise.  This  explains  very  much  in  our  political  life  which 
appears  obscure  if  we  do  not  keep  in  view  the  fact  that 
the  President  is  both  a  maker  and  an  executor  of  the 
laws.  And  this  being  the  case,  we  cannot  keep  the 
departments  of  the  government  separate,  for  the  reason 
that  they  are  not  essentially  entirely  separable.  The 
framers  of  the  Constitution  were  impressed  with  the  con- 
viction that  in  the  British  system  there  was  actually 
present  a  separation  of  legislative,  executive,  and  judicial 
functions,  and  that  each  moved  within  an  independent 
circle  of  its  own.  They  were  not  in  a  position  accurately 
to  determine  the  full  force  of  the  set  of  power,  both 
legislative  and  executive,  into  the  House  of  Commons. 
Personal  government,  as  exhibited  in  the  constant  inter- 
ference of  George  III.  in  the  conduct  of  affairs,  and 
always  for  the  purpose  of  oppression,  had  inspired  them 
with  a  dread  of  a  strong  or  willful  executive.  They  were 
afraid  to  give  the  President  an  absolute  veto.  If  they  had 
given  him  this  power  the  issue  would,  no  doubt,  at  a 
very  early  day,  have  been  forced  and  settled  between  the 
chief  magistrate  and  Congress  by  the  practical  dominance 
of  the  latter,  because  the  power  of  impeachment  would 
have  been  used  without  mercy.  As  it  was,  the  executive 


214  POLITICS. 

was  to  be  a  check  upon  Congress,  and  the  latter  a  coun- 
ter check  upon  the  chief  magistrate,  while  each  branch  of 
Congress  was  to  be  a  check  upon  the  other,  and  the 
judiciary  a  check  upon  all  the  co-ordinate  branches. 

The  importance,  therefore,  of  the  President  in  our  sys- 
tem is  not  as  the  republican  symbol  of  the  king,  not  as 
the  personification  of  the  national  unity,  but  as  a  legislator 
elected  by  the  people  at  large,  with  a  voting  power  nearly 
equal  to  one-third  of  the  two  houses  of  Congress.  The 
attitude  of  mind  of  the  colonists  towards  the  British  ex- 
ecutive, and  the  theories  which  grew  out  of  it,  prevailed 
until  the  disappearance  of  the  generation  of  the  Revolu- 
tion ;  in  truth,  they  color  even  yet  the  thought  of  very 
many  of  our  people.  This  thought  is,  that  the  President 
is  one  of  the  guardians  of  the  Constitution  ;  that  he  stands 
as  a  national  conservative  to  restrain  popular  passions  ;  a 
wise  man  in  a  possible  access  of  folly.  The  actual  con- 
stitutional position  of  the  chief  magistrate  had  a  flood  of 
light  thrown  upon  it  by  the  doings  of  Jackson.  Jackson 
took  his  presidential  position  literally  as  it  was.  When 
he  made  his  warfare  upon  the  Bank  of  the  United  States, 
he  assumed  the  attitude  of  a  tribune  of  the  people,  pro- 
tecting them  against  the  machinations  of  the  rich.  In 
his  message  vetoing  the  bank  charter,  he  asserted  :  "The 
Congress,  the  executive,  must  each  for  itself  be  guided 
by  its  own  opinion  of  the  Constitution.  Each  public 
officer  who  takes  an  oath  to  support  the  Constitution 
swears  that  he  will  support  it  as  he  understands  it,  and 
not  as  it  is  understood  by  others. " 

This  has  been  much  criticised,  but  if  we  limit  its  as- 
sertion of  independence  of  judgment  to  acts  proposed, 
and  not  to  acts  accomplished,  it  is  unassailable.  The 
Supreme  Court  of  the  United  States  only  passes  judgment 
upon  existing  facts,  and  applies  the  constitutional  test  to 


CONDITIONS   OF   POLITICAL   GROWTH.       215 

a  case  already  made.  But  the  important  functions  of  the 
President  and  Congress,  in  the  exercise  of  legislative 
power,  are  to  be  applied  to  acts  proposed  which  relate  to 
the  future.  In  this  field,  each  must  necessarily  construe 
the  Constitution  for  itself.  Then  again,  in  what  is  called 
purely  political  action,  that  is,  the  choice  of  means  to 
accomplish  a  constitutional  end,  the  action  of  the  partic- 
ular department  charged  with  a  duty  must  be  guided  by 
its  own  judgment ;  for  instance,  if  a  national  bank  is 
constitutional,  what  shall  be  the  details  of  construction  ; 
or  it  may  become  necessary,  before  a  power  can  be  exer- 
cised, to  determine  and  declare  that  a  certain  state  of 
facts  exists,  as,  for  example,  that  there  is  an  actual  state 
of  war.  Jackson,  however,  really  went  further ;  he  took 
the  position  of  the  chief  representative  of  the  people  in 
law-making.  He  quietly  swept  aside  the  theory  that  the 
people  were  only  indirectly  the  choosers  of  the  executive, 
and  appealed  directly  to  them,  claiming  that  his  second 
election  was  a  popular  endorsement  of  his  policy.  Since 
his  day,  the  position  of  the  President  in  our  system  has 
been  more  distinctly  brought  out.  The  point  of  inquiry, 
however,  to  which  it  is  desired  to  direct  attention  is  that 
regarding  the  inherent  probabilities  of  the  absorption  of 
power,  as  between  the  President  and  Congress.  This 
turns,  as  already  suggested,  on  the  constitutional  ad- 
vantages of  position.  Which  of  the  two  can  draw  most 
from  the  common  reservoir  of  will-power  ?  It  is  apparent 
that  Congress  has  at  least  two  advantages — it  has  the  in- 
itiative in  legislation,  and  it  can  prescribe  the  manner  and 
time  of  presidential  acts  in  domestic  affairs.  The  right  of 
initiation,  however,  loses  somewhat  of  its  value,  because 
of  the  veto  power,  and  when  Congress  is  anxious  to  carry 
out  particular  legislation,  it  may  be  forced  to  go  to  the 
President  in  advance  to  know  what  form  of  bill  will  meet 


2l6  POLITICS. 

his  approval.  This  has  frequently  been  done.  Jackson 
intimated  that  he  possibly  might  approve  a  bank  measure, 
if  made  to  conform  in  advance  to  his  views  ;  a  claim, 
which  particularly  excited  the  anger  of  Clay  and  Webster. 
Tyler  was  consulted  as  to  the  form  of  the  bank  bill  pre- 
pared after  his  first  veto,  and  even  altered  the  phraseology 
of  particular  sections ;  and  in  other  instances,  the  views 
of  the  executive  have  been  ascertained  before  introducing 
a  bill.  Nevertheless,  even  with  these  qualifications,  the 
power  of  initiating  measures  gives  an  immense  advantage 
in  the  choice  of  time,  subjects,  and  method.  Add  to  this, 
the  power  of  hedging  the  chief  magistrate  about  with 
restrictions,  supplemented  by  the  power  of  impeachment, 
and  it  maybe  safely  asserted  that,  in  the  long  run,  Congress 
will  encroach  upon,  and  reduce  the  President  to  a  second- 
ary position. 

The  impotency  of  this  officer,  when  in  opposition  to  a 
hostile  Congress,  animated  by  strong  passions,  was  strik- 
ingly illustrated  in  the  controversy  between  President 
Johnson  and  the  legislative  branch.  There  were  funda- 
mental differences  between  them,  going  even  to  the  theory 
of  the  relations  of  the  States  to  the  general  government, 
which,  however,  might  have  been  bridged  over ;  but  the 
irreconcilable  antagonism  grew  out  of  the  attempt  of  the 
President  to  carry  out  a  policy  contrary  to  that  of  Congress. 
He  proposed  on  his  side,  and  they  on  theirs,  to  exercise 
the  will-power  of  the  nation.  In  the  meantime,  the 
people  stood  by,  and  looked  on.  In  a  contest  of  this 
kind,  the  legislative  branch  of  the  government  has  such 
an  enormous  advantage  that  in  the  end  it  will  be  sure 
practically  to  dominate  the  executive. 

The  judicial  branch  of  the  government  has  apparently 
an  independent  position.  If  it  really  possessed  the  powers 
it  theoretically  possesses,  of  being  the  final  arbiter  between 


CONDITIONS    OF   POLITICAL   GROWTH.      2 1 7 

the  occasional  and  the  permament  wills  of  the  nation;  if  it 
could  without  restraint,  absolutely  veto  legislation  upon 
the  assertion  that  it  contravenes  the  Constitution,  then  it 
would,  certainly,  become  the  dominant  branch  of  the 
government.  But,  actually,  it  can  be  held  in  check  by 
the  legislative  branch.  The  Supreme  Court  cannot  be 
abolished,  nor  can  its  jurisdiction  be  impaired  ;  but  the 
number  of  judges  is  in  the  control  of  Congress.  If  a 
decision  is  contrary  to  its  views,  it  can  increase  the  number 
of  judges  and  thus  bring  about  a  reversal,  as  was  actually! 
done  when  the  greenback  cases  were  before  the  court.  I 
Or  the  amount  in  controversy  required  to  authorize  an  ap- 
peal can  be  made  so  high  as  practically  to  cut  off  resort 
to  the  court  in  most  cases.  The  whole  scope  of  the 
inferior  judiciary  is  so  entirely  in  the  control  of  Congress 
that  this  body  may  make  and  unmake  the  courts  almost 
at  its  will.  Then,  again,  the  action  of  the  courts  is  only 
upon  individual  disputes ;  and,  while  its  decision  in  a 
particular  case  may  in  effect  nullify  a  statute,  it  is  rather 
a  definition  than  a  limitation  of  the  will-power  of  the 
nation.  Whenever  the  court  steps  outside  of  the  case 
before  it,  to  decide  political  questions  agitating  the  coun- 
try, it  not  only  loses  in  moral  weight,  but  its  decree  falls 
dead  upon  the  subject-matter  itself.  The  Dred  Scott 
decision  was  a  most  flagrant  instance  of  judicial  assump- 
tion, and  a  most  lamentable  example  of  judicial  impo- 
tence. Chief  Justice  Taney  labors  through  three  or  four 
pages  to  show  that  Dred  Scott  could  not  maintain  his 
action  in  the  United  States  Courts,  because,  being  a  negro 
and  the  descendant  of  slaves,  he  could  not  be  a  citizen, 
either  of  a  State,  or  of  the  United  States.  Having  reached 
the  conclusion  that  Scott  had  no  standing  in  court,  the 
proper  course  would  have  been  to  go  no  further,  and 
dismiss  the  case.  But  the  majority  of  the  court  was  so 
10 


2l8  POLITICS. 

anxious  to  throw  its  weight  into  the  controversy  which 
was  then  raging  over  the  question  of  slavery  in  the  terri- 
tories, that  it  proceeds,  unnecessarily,  to  hold  that  the 
Missouri  Compromise  was  void,  and  that  slavery  could  be 
introduced  into  all  the  territories.  Read  now  coolly,  after 
the  slave  controversy  has  become  a  matter  of  history,  this 
opinion  shows  the  absolute  perversion  of  sound  judgment, 
which  is  apt  to  exhibit  itself  in  the  judicial  mind,  when 
dealing  with  questions  about  which  political  passions  are 
raging.  Instead  of  terminating  the  angry  debate  over 
slavery  in  the  territories,  this  opinion  added  fuel  to  the 
flame,  and  no  doubt  was  potent  in  hastening  the  inevitable 
war. 

Our  history  has  clearly  demonstrated  that  the  judiciary 
cannot  make  itself  felt  as  a  balance  wheel  between  parties. 
It  invariably  loses  the  respect  in  which  it  ought  to  be 
held,  when  it  takes  hold  of  living  political  issues,  and  its 
judgments  never  lead  to  an  adjustment  of  them.  The 
judiciary,  in  a  government  based  upon  a  written  consti- 
tution, is  valuable  in  defining  the  limits  within  which  the 
different  departments  shall  work,  and  gradually  it  gives, 
through  its  exposition,  greater  precision  to  the  different 
parts.  The  legislative  branch  has  its  defined  limitations, 
but  its  tendency  always  will  be  to  construe  for  itself  the 
scope  of  its  competency,  and  it  is  to  be  expected  that, 
from  its  greater  command  of  resources,  it  will  be  inclined 
to  impose  limitations  upon  other  departments,  and  to 
aggrandize  itself.  These  results  in  the  normal  action  of 
the  government  come  about  slowly,  so  that  it  may  be  a 
long  time  before  the  legislature  absorbs  most  of  the 
functions  of  government. 

The  tendency  in  our  federal  system  is  plainly  to 
establish  Congress  as  the  means  for  expressing  the  will  of 
the  nation.  The  inevitable  drift  of  Congress  is  toward 


CONDITIONS   OF  POLITICAL  GROWTH.      2 19 

the  exercise  of  powers  not  expressly  given,  nor  ancillary 
to  any  enumerated  in  the  Constitution  ;  powers  which 
Judge  Story  styled  resulting  powers,  arising  from  the 
aggregate  of  the  powers  of  government,  and  Congress  will 
be  always  naturally  inclined  to  push  its  claims  in  those 
fields  of  legislation,  constantly  widening  under  the  general 
clauses  of  the  Constitution,  where  the  judiciary  from  a 
very  early  day  have  decided  that  it  is  the  judge  of  what 
is  "proper  and  necessary."  It  may  and  probably  will  be 
a  very  long  time  before  there  will  be  such  a  concentration, 
as  we  see  in  Great  Britain,  in  the  House  of  Commons. 
The  old  forms  and  theories  will  remain  substantially  the 
same,  but  the  substance  of  power  will  be  in  Congress. 
As  between  the  Senate  and  the  House,  the  tendency  will 
naturally  be  towards  the  House,  for  one,  if  for  no  other 
reason,  because  it  possesses  the  great  power  of  initiating 
all  revenue  measures. 

The  tendency  to  differentiation  of  functions  in  govern- 
ment is  not  in  conflict  with  the  one  already  described  as 
leading  to  a  concentration  of  all  directing  power  in  one 
person  or  department.  Naturally,  as  a  community  grows 
older  and  more  complex,  there  is  an  increase  of  the  de- 
partments of  government,  but  it  does  not  necessarily 
follow  that  there  will,  at  the  same  time,  be  a  correspond- 
ing division  of  the  dominating  will-power.  A  division  of 
will-power  may  come  about  from  other  causes  than  the 
mere  growth  of  the  social  body  ;  perhaps  through  the  slow 
operation  of  a  variety  of  causes,  as  in  England  ;  or  pos- 
sibly in  consequence  of  a  grant  of  limited  representative 
institutions  from  a  king,  as  when  Frederick  William  IV., 
in  1850,  gave  a  constitution  to  Prussia.  When  this 
dominating  will-power  is  divided,  from  whatever  causes, 
whether  through  external  wars  or  social  or  political  revo- 
lutions, or  by  design,  in  written  constitutions,  there  are 


22O  POLITICS. 

new  forces  set  in  motion,  which  inevitably  tend  to  reunite 
it.  Moreover,  the  work  of  governing,  as  it  increases,  de- 
mands a  continually  increasing  number  of  departments, 
boards,  and  officers,  to  perform  the  routine  and  other  duties 
mapped  out  by  the  law-making  power.  At  the  outset, 
when  the  United  States  contained  about  four  millions  of 
inhabitants,  it  was  found  sufficient  in  organizing  the  gov- 
ernment to  create  only  three  departments  :  one  for  foreign 
affairs,  another  for  war,  and  a  third  for  the  treasury.  Now 
there  are  eight  principal,  and  several  minor  departments. 
There  are  the  departments  of  State,  of  the  Treasury,  of 
the  Interior,  with  its  subordinate  divisions  into  the  Gen- 
eral Land  Office,  Pension  Office,  Patent  Office,  Indian 
Office,  Bureau  of  Education,  Census  Office,  besides  various 
minor  offices  ;  there  are  also  the  departments  of  War,  of 
the  Post-Office,  of  the  Navy,  of  Justice,  and  of  Agricul- 
ture. In  addition  to  these,  there  is  attached  to  the 
Treasury  Department  an  elaborate  system  of  offices  for 
the  collection  of  internal  revenue.  Not  only  are  the 
departments  more  numerous,  but  there  has  also  been 
an  enormous  increase  in  the  number  of  persons  employed 
in  them,  and,  moreover,  a  more  specialized  division  of 
duties.  This  has  all  occurred  with  us  in  less  than  a 
century,  the  specialization  being  all  in  the  direction  of 
the  details  of  labor.  In  all  legislative  bodies,  there  has 
also  been  a  division  of  labor  through  committees,  and 
through  the  growth  of  a  complex  system  of  forms.  In 
the  original  assembly  of  the  people,  the  body  acted  directly 
in  making  the  law,  but  now,  a  bill  introduced  into  Con- 
gress must  go  through  certain  readings,  be  referred  to 
certain  committees,  and  be  acted  upon  in  certain  pre- 
scribed ways,  before  it  can  be  published  as  the  law  of  the 
land. 

It  is  one  of  the  results  of  social  specialization  that  men 


CONDITIONS   OF  POLITICAL  GROWTH.       221 

accomplish  their  ends  by  indirect  expenditures  of  their 
individual  forces.  We  see  this  prominently  illustrated  in 
the  economical  relations ;  how  men  labor  at  one  thing, 
in  order  to  accomplish  another.  In  the  political  rela- 
tions also  there  is  a  division  of  labor,  and  the  national  as 
well  as  the  individual  force  expends  itself  through  various 
devious  and  intricate  channels  before  it  reaches  its  object. 
What  is  popularly  sneered  at  as  "  red  tape  "  becomes 
really  inevitable. 

The  differentiation  of  government  from  its  simpler 
forms  into  distinct  executive,  legislative,  and  judicial 
branches  is  a  natural  process,  as  governments  become 
popularized  ;  that  is,  as  the  number  of  those  increases 
who  have  a  voice  in  saying  how  the  government  shall  be 
conducted,  and  as  the  work  for  the  government  to  do 
enlarges.  The  increase  in  the  number  of  those  who  can 
decide  how  the  government  shall  be  conducted  means,  of 
course,  that  the  supreme  directing  power  is  not  ex- 
clusively in  the  one,  or  more  than  one  who  may  have 
originally  possessed  it,  but  is  shared  by  many.  Under 
these  circumstances,  the  laws  producing  a  division  of  labor 
will  operate,  and  one  function  will  be  exercised  by  one 
person,  and  another  by  another.  If  a  hundred  men  set 
about  the  accomplishment  of  a  given  task,  they  will  very 
soon  divide  the  work  into  convenient  parts,  and  though  all 
may  at  the  outset  be  on  an  equal  footing  as  to  the  methods 
of  reaching  the  desired  end,  it  will  very  soon  result  that 
the  directing  will  will  be  lodged  in  one,  or  a  specific 
number  of  the  body.  So  those  social  ends  which  can  be 
accomplished  only  through  government  are  reached  in 
very  much  the  same  way.  As  all  cannot,  from  day  to 
day,  assist  in  the  making  of  laws  and  the  execution  of 
them,  the  work  is  naturally  divided  and  assigned  to  dif- 
ferent persons ;  but  if,  in  this  distribution,  the  supreme 


222  POLITICS. 

directing  power  is  also  divided,  then  there  is,  according 
to  the  degree  of  division,  an  abnormal  political  condi- 
tion, which  in  the  healthy  vigorous  community,  naturally 
tends  to  become  normal  again  through  concentration  of 
this  supreme,  controlling  power.  At  the  time  our  Con- 
stitution was  framed,  the  balance  of  power  had  not  com- 
pletely gone  over  to  the  House  of  Commons,  as  has  since 
been  the  case.  There  was  still  much  of  the  "personal 
government "  of  the  king.  The  Cabinet  had  not  become  so 
entirely  the  pivot  of  affairs  as  now.  There  was  supposed 
to  be,  by  the  admirers  of  the  British  constitution,  a 
happy  balance  of  powers  which  kept  the  whole  scheme  of 
administration  in  a  beautiful  poise,  neither  inclining 
too  much  to  absolutism  nor  too  much  towards  democ- 
racy. 

Impressed  with  these  beliefs,  the  makers  of  our  Con- 
stitution attempted  to  make  firm  and  stable  by  positive, 
written  law,  what  in  truth  was  in  the  mother  country  in 
a  transition  stage.  Consequently  one  of  the  political  tasks 
of  the  century  has  been,  and  continues  to  be,  to  twist 
and  construe  and  practically  work  the  Constitution,  so  as 
to  concentrate  the  directing  power  in  the  House  of  Rep- 
resentatives. 

The  separation  of  the  departments  of  government  into 
legislative,  executive,  and  judicial  has,  at  bottom,  no  other 
significance  than  as  a  convenient  working  scheme  for  the 
administration  of  the  complex  affairs  of  a  complex 
society;  and  in  so  far  as  the  attempt  in  separating  them  is 
also  to  distribute  among  them  the  law-making  power, 
which  is  the  final  expression  of  the  supreme  national  will, 
to  that  extent  are  the  occasions  of  strife  introduced,  lead- 
ing to  more  or  less  open  conflict  between  the  depart- 
ments, which  will  end  only  with  the  final  concentration 
of  this  supreme  power  in  one  or  another. 


CHAPTER   XVII. 

THE  TENDENCY  OF  POWER  IN  FEDERAL  GOVERNMENT. 

A  CONFEDERATION  of  states  is  necessarily  short-lived  ; 
if  it  does  not  go  to  pieces,  it  can  be  considered  only  as 
a  transition  stage  between  smaller  single  states  and  a 
larger  single  one.  In  like  manner  also  the  federal  state 
represents  merely  a  further  stage  of  development  toward 
the  single  state. 

Thus  far  the  analysis  has  been  confined  to  the  single, 
complete,  or,  as  it  is  usually  denominated,  sovereign 
state  ;  and  the  nation  has  been  treated  as  embracing  such 
a  state.  The  aim  has  been  always  to  keep  in  mind  a 
single,  organic,  political  body,  and  to  discover,  if  pos- 
sible, the  elementary  forces  which  are  operating  in  every 
such  body.  The  special  manifestations  of  these  forces 
in  particular  forms  of  administration  have  been  only 
incidentally  adverted  to,  and  by  way  of  illustration,  be- 
cause, if  we  can  make  clear  to  our  minds  the  general 
principles  upon  which  all  governments  are  constructed, 
we  are  in  a  position  to  study  properly  any  particular  gov- 
ernment. 

We  must  now  go  a  step  farther,  and  examine  the  char- 
acter of  the  governmental  relations  which  arise  when  two 
or  more  states  join  themselves  together  and  form  a  new 
government.  It  is  not  within  our  scope  to  consider  the 
maxims  of  international  law,  which  furnish  rules  of  con- 
duct and  bind  sovereign  states  together  into  a  world- 
community.  These  maxims  belong  to  the  domain  of 


224  POLITICS. 

positive  morality,  and  the  rights  and  obligations  which 
arise  under  international  law  are  moral  rather  than  jural. 
Nor  is  it  proposed  here  to  consider  those  temporary  alli- 
ances of  states,  which  are  the  result  of  treaties,  but 
rather  those  permanent  alliances  through  which  the  gov- 
ernments of  the  individual  states  are  more  or  less 
affected.  There  may  be  merely  a  personal  union,  as 
where  a  prince  becomes,  by  descent  or  other  means,  the 
governmental  head  of  states  permanently  allied.  We 
have  examples  of  this  personal  union  in  the  Empire  of 
Charles  V.;  also  in  the  cases  of  William  III.,  King  of 
England  and  Stadtholder  of  Holland;  and  of  George  I., 
King  of  England  and  Elector  of  Hanover.  Or,  at  the 
other  extreme,  there  may  be  the  federal  state,  like  the 
United  States.  Between  these,  there  may  be,  as  there 
have  been  at  various  times,  several  forms  of  federations. 
They  have  even  been  carefully  classified,  as  alliances, 
confederacies  of  states,  federal  states,  real  unions, 
personal  unions,  and  incorporations  ;  but  it  is  impos- 
sible to  put  in  definitions  the  precise  differences.  One 
shades  off  into  the  other,  and  a  combination  of  states 
may  present  the  characteristics  of  two  or  more  of  these 
classes.  German  writers,  for  purposes  of  analysis,  dis- 
tinguish among  them  two  kinds  :  the  Staatenbund  (con- 
federacy of  states),  and  the  Bundesstaat  (federal  state). 
This  is  probably  the  most  comprehensive  and  best  classi- 
fication. 

W^e  cannot  expect,  even  as  to  these,  accurate  defini- 
tions. In  a  general  way,  it  may  be  said  that  both,  as  to 
other  states,  in  external  relations,  or  foreign  affairs,  pre- 
sent the  form  of  unity.  There  must  be  a  central  organ 
which  speaks  for  the  entire  body,  as  one  political  being. 
It  is  in  the  relations  between  the  central  power  and  the 
citizens  that  the  essential  distinction  manifests  itself.  In 


POWER  IN  FEDERAL  GOVERNMENT.    225 

the  confederacy  of  states,  there  is  a  central  government 
created  by  agreement  between  the  states,  and  the  laws  of 
this  central  authority  are  to  be  obeyed  by  the  several 
states  as  states ;  that  is,  the  individual  states  as  sover- 
eignties are  to  see  that  the  laws  are  executed.  The  re- 
lation of  the  citizen  to  the  central  government  is  only  in- 
direct, through  his  state.  The  federal  state  is  also  an 
association  of  states,  by  agreement,  in  which,  however, 
the  central  government,  by  its  own  laws  and  officers,  acts 
directly  upon  the  citizen,  without  the  interposition  of 
his  state.  Under  this  system,  the  citizen  owes  a  double 
allegiance — directly  to  the  central  government,  and  also 
directly  to  his  state.  In  the  federal  state,  the  objects 
over  which  the  central  power  has  jurisdiction,  and  the 
methods  of  exercising  this  jurisdiction,  are  defined  in  the 
written  constitution,  and  all  powers  not  conferred  upon 
the  central  government  are  reserved  to  the  states.  It  is 
commonly  said  of  the  federal  state  that  its  powers  are 
enumerated,  while  those  of  the  component  states  are  sov- 
ereign, except  where  surrendered  to  the  central  authority. 
A  very  good  example  of  a  confederation  of  states  is 
found  in  the  union  of  the  colonies  during  the  Revolu- 
tionary war,  under  the  Articles  of  Confederation  adopted 
July,  1778;  and  the  most  complete  instance  of  a  fed- 
eral state  is  that  of  our  Union,  formed  in  1787.  The 
Articles  of  Confederation  were  more  like  a  treaty  than  a 
scheme  of  effective  government.  The  third  article  pro- 
vides that  "the  said  states  hereby  severally  enter  into 
a  firm  league  of  friendship  with  each  other,  for  their  com- 
mon defence,  the  security  of  their  liberties,  and  their 
mutual  and  general  welfare,  binding  themselves  to 
assist  each  other  against  all  force  offered  to,  or  attacks 
made  upon,  them,  or  any  of  them,  on  account  of  re- 
ligion, sovereignty,  trade,  or  any  other  pretence  whatever. " 


226  POLITICS. 

This  is  the  language  of  independent  sovereignties,  com- 
bining for  purposes  of  mutual  defence,  against  a  common 
enemy. 

In  order  to  promote  intercourse  between  the  citizens 
of  the  different  states,  certain  privileges  are  accorded  to 
all  alike  concerning  ingress  and  egress,  commerce,  and 
other  matters.  In  all  these  things,  the  Articles  do  not 
go  beyond  an  ordinary  treaty.  The  characteristics  of  a 
common  government  appear,  in  the  provision  that  dele- 
gates should  be  annually  appointed  to  meet  in  Congress, 
in  such  a  manner  as  the  Legislature  of  each  state  should 
direct.  These  delegates  were  rather  plenipotentiaries 
from  the  governments  of  the  different  states  than  repre- 
sentatives to  a  parliamentary  body.  Each  state  could 
send  such  a  number  of  them  as  it  pleased,  not  less  than 
two,  nor  more  than  seven,  and  could  recall  them  at  any 
time  and  send  others  in  their  stead.  Each  state  paid  its 
own  delegates,  and  upon  the  adoption  of  measures  each 
state  had  only  one  vote ;  thus  putting  them  upon  a  plane 
of  equality.  In  these  respects,  the  Congress  of  the 
states  was  very  much  like  the  present  Bundesrath,  or 
federal  council,  of  the  new  German  Empire.  This 
body  consists  of  delegates  from  the  governments  of  the 
several  principalities  composing  the  empire  ;  the  maxi- 
mum number  which  each  shall  send  being  fixed  by  the 
constitution,  but  all  the  votes  of  each  State  can,  however, 
be  cast  only  as  a  unit. 

Our  American  confederation  confided  to  the  general 
Congress  all  the  powers  of  the  common  government,  with 
authority  to  appoint  a  committee  to  sit  during  its  re- 
cesses, called  "a  committee  of  the  states,"  consisting  of 
one  delegate  from  each  state,  which  had  power  to  man- 
age the  general  affairs  of  the  confederacy  to  the  extent 
prescribed  in  the  Articles. 


POWER  IN  FEDERAL  GOVERNMENT.    22/ 

The  essential  characteristic,  however,  of  this  confed- 
eracy was,  that  the  central  will-power  acted  upon  the 
states,  and  not  directly  upon  their  citizens.  The  central 
government,  politically,  did  not  know  of  any  citizens, 
except  as  they  were  mentioned  in  the  Articles,  as  having 
certain  rights  as  citizens  of  a  state  ;  it  knew  only  the  states 
as  political  organizations. 

The  new  conception  embodied  in  the  Constitution  of 
the  United  States,  which  brings  the  central  government 
into  direct  relations  with  all  the  citizens,  and  at  the  same 
time  leaves  them  subject  to  the  jurisdiction  of  their  several 
states,  which  makes  each  person  a  citizen  of  the  United 
States,  and  at  the  same  time  a  citizen  of  his  own  state,  is 
justly  claimed  as  an  American  discovery.  It  certainly 
must  be  considered  as  a  remarkable  instance  of  that  polit- 
ical sagacity  by  which  the  Anglo-Saxon  is  led  instinctively, 
as  it  would  seem,  to  adapt  his  political  action  to  his 
particular  present  needs.  But  to  speak  of  it  as  the 
ultima  Thule  of  political  discovery,  is  exaggerated  praise. 
Political  evolution  proceeds  in  the  direction  of  the  fusion 
of  heterogeneous  political  particles,  and  their  expansion 
into  a  homogeneous  body  which,  as  a  political  organic 
being,  constantly  tends  to  make  one  organ  pre-eminently 
the  exponent  of  the  common  will.  The  occasions, 
causes,  and  methods  of  fusion  or  expansion  vary  accord- 
ing to  the  accidents  and  circumstances  we  see  depicted  in 
history.  We  have  not  yet  reached  that  condition  of  posi- 
tive knowledge — and  perhaps  we  never  shall — when  we  can 
say  with  assurance  of  correctness  how  much  of  the  prog- 
ress toward  national  growth  is  due  to  early  and  later 
environment  alone,  and  how  much  to  innate  special  race 
qualities.  It  is,  however,  certain  that  running  through 
political  phenomena  there  is  a  general  logical  sequence 
of  events  in  view  of  which  it  can  be  affirmed  that  the 


228  POLITICS. 

order  of  progress  is  from  the  political  unit,  the  family,  or 
tribe,  or  city,  as  the  case  may  be,  through  fusion  and  ex- 
pansion to  the  nation  ;  that,  hence,  a  confederacy  of 
states  and  the  federal  state,  are  but  transition  stages  of 
development ;  and  that,  in  the  order  of  development,  the 
federal  State  is  but  a  step  beyond  the  confederacy,  and  a 
step  behind  the  fully  developed  nation. 

The  legal  theory  of  our  American  federal  state  is,  that 
it  contemplates  as  of  its  essence  the  balancing  of  the 
governments,  national  and  State,  so  as  to  hold  them  for- 
ever in  equipoise.  Let  us  look  into  its  actual  constitution 
and  operation  in  order  to  see  whether  such  an  equipoise 
has  been  or  ever  will  be  reached. 

We  must  start  from  two  facts  :  i.  that  the  people 
inhabiting  the  territory  claimed  by  the  colonies  which 
had  combined  to  free  themselves  from  Great  Britain  were 
socially  an  embryo  nation  ;  2.  that  at  the  close  of  the 
Revolution  they  were  divided  politically  into  separate 
groups.  Madison  states  that  prior  to  and  at  the  time  of 
the  Revolution  the  current  theory  was  that  there  was 
only  an  executive  sovereignty  in  England,  and  that  each 
colony  was  sovereign  in  legislation  within  its  own  limits  ; 
that  in  matters  of  foreign  trade  and  external  relations 
parliament  might  pass  laws,  and  that  certain  general 
legislation  by  the  Parliament  for  the  colonies  in  their  re- 
lations to  each  other,  had  been  permitted  by  the  latter. 
As  a  fact,  the  colonies  never  were,  at  any  time,  up  to  the 
Declaration  of  Independence,  and  the  Articles  of  Confed- 
eration, a  little  later,  actual  sovereign  states.  They  were 
dependencies  of  the  mother  country,  and  politically  sub- 
ject to  it,  and  yet  they  were  so  far  distinct  from  each  other 
that  when  the  tie  with  the  parent  government  was  severed 
they  stood  apart  from  each  other,  as  distinct  political 
beings.  While  the  pressure  of  the  war  was  the  occasion 


POWER   IN   FEDERAL   GOVERNMENT.         22$ 

of  the  joining  offerees  for  the  common  defence,  it  cannot 
be  said  to  have  been  altogether  the  cause  which  induced 
the  new  states  to  enter  into  the  Articles  of  Confederation. 
They  do  not  seem  to  have  been  in  very  great  haste  to 
come  together  into  close  political  union,  for  the  Articles 
were  not  adopted  until  July,  1778,  three  years  after  the 
war  commenced  ;  and  they  were  not  accepted  by  all  the 
States  until  the  actual  fighting  was  nearly  over,  in  March, 
1781,  some  seven  months  before  Cornwallis  surrendered. 
The  two  opposite  impulses,  that  involved  in  the  State- 
rights  ideas,  and  that  growing  out  of  the  national  feeling, 
which  have  been  such  powerful  factors  in  our  political 
life,  were  then  suddenly  brought  to  light,  and  stood  in 
opposition  to  each  other.  The  experiences  of  the  war 
probably  turned  the  scale  in  favor  of  union,  overcoming 
colonial  pride  and  the  narrow  prejudices  of  provincial 
communities  against  each  other,  which  were  then  rife, 
and  also  overmastered  the  latent  antagonisms  which  were 
then  smoldering  in  the  North  and  South,  and  which 
afterward  developed  into  the  war  between  these  two  sec- 
tions. The  instinct  of  a  common  nationality  was  pushing 
in  one  direction,  and  the  jealousies  and  fears  of  small  in- 
dependent states  in  another. 

Whatever  the  facts  as  to  actual  sovereignty  were,  the 
Constitution  which  was  framed  for  the  new  political  body, 
the  United  States  of  America,  was,  undoubtedly,  a  com- 
pact based  upon  a  supposed  and  accepted  sovereignty  in 
each  of  the  thirteen  states. 

Prior  to  the  accession  of  Jefferson  to  the  Presidency 
and  the  triumphs  of  his  school  of  politics,  the  prevailing 
opinion  was  that  the  Constitution  created  a  national 
federal  state  ;  but  after  th^t,  with  very  little  question, 
until  Jackson's  time,  and  following  that  period  down  to 
the  breaking  out  of  the  civil  war,  with  occasional  doubts 


230  POLITICS. 

and  fluctuations,  the  State-rights  ideas  were  in  the  ascend- 
ant. On  this  point,  however,  there  was  a  division,  the 
South  tending  to  the  extreme  view  of  State-rights,  the 
North  to  the  moderate  national  side.  Whether  the  in- 
creased profitableness  of  slavery  and  its  fostering  of  indus- 
trial and  social  conditions  divergent  from  those  where  free 
labor  prevailed,  occasioned  the  opposite  tendencies,  in 
the  two  sections,  need  not  be  discussed  here.  We  know 
that  in  the  South  the  extreme  State-rights  doctrines  were 
developed,  and  that  in  the  North  they  were  so  much  weak- 
ened that  the  first  shock  of  the  civil  war  may  be  said  to 
have  swept  them  away.  Certainly  during  the  war  they 
entirely  ceased  to  be  an  active  political  force.  We  can 
now  see  that  with  the  body  of  the  Northern  people,  they 
were  rather  abstractions  than  realities.  There  was  among 
the  people  of  the  North  a  breadth  and  strength  of  national 
feeling  of  which  they  were  not  fully  conscious  until  it 
was  seriously  proposed  by  the  South,  arms  in  hand,  to 
act  as  it  believed. 

This  new  American  conception  of  a  great  confederation 
of  states,  with  a  central  government,  supreme  in  its  special 
sphere,  and  acting  without  the  intervention  of  the  several 
states  directly  upon  their  citizens,  and  at  the  same  time, 
a  congeries  of  sovereignties,  each  supreme  in  its  sphere, 
and  also  acting  upon  the  same  citizens,  involved  an  in- 
congruity, which  it  might  have  been  affirmed  a  priori, 
would  have  evolved  radically  opposite  theories,  leading, 
according  as  the  one  or  the  other  prevailed,  to  disrup- 
tion or  consolidation. 


CHAPTER     XVIII. 

TENDENCY   OF    POWER    IN   THE    UNITED   STATES. 

THE  political  history  of  the  United  States  from  1787  to 
1865  is  filled  with  the  great  debate  on  the  question  : 
What  is  the  Constitution  of  the  United  States  ?  It  may 
not,  therefore,  be  out  of  place  to  examine  somewhat 
closely  the  opposite  views  which,  at  an  early  day,  made 
their  appearance,  because  they  illustrate  what,  necessarily, 
will  be  the  divergent  lines  of  argument,  when  a  com- 
posite system  like  ours  comes  under  discussion. 

The  advocates  of  State-rights  said,  substantially,  that  the 
government  of  the  United  States  is  Federal,  as  distin- 
guished from  National,  and  also  as  distinguished  from 
that  of  a  confederacy.  It  is  Federal,  because  it  is  the 
government  of  a  community  of  states,  and  not  of  a  sin- 
gle state  or  nation.  They  affirmed,  moreover,  that  the 
delegates  to  the  Constitutional  Convention  were  ap- 
pointed by  separate  states  ;  that  the  question  of  accept- 
ance or  rejection  was  presented  to  separate  states,  and 
the  adoption  was  by  separate  states,  and  was  only  effected 
between  those  adopting.  It  is  thus,  they  conclude,  ap- 
parent that  the  act  of  ratification  did  not  make  the  gov- 
ernment national.  Is  there  anything  in  the  Constitution 
which  makes  it  so  ?  If,  by  ratifying  this  instrument,  the 
states  have  divested  themselves  of  their  individuality  and 
sovereignty,  and  merged  themselves  in  one  great  com- 
munity or  nation,  it  is  clear  that  sovereignty  would  re- 
side in  the  whole,  or  what  is  called,  the  American  people, 


232  POLITICS. 

and  that  allegiance  would  be  due  to  them  ;  that  the  gen- 
eral government  would  be  the  superior,  and  the  State 
government  the  inferior,  and  that  the  people  would  be 
united  socially  and  not  merely  politically. 

The  whole  action  of  the  colonies,  in  adopting  the  Dec- 
laration of  Independence,  the  Articles  of  Confederation, 
and  the  Constitution,  was,  as  distinct  political  communi- 
ties, independent  of  each  other.  In  order  to  be  effective, 
the  Constitution  had  to  be  ratified  "  between  "  nine  states  ; 
consequently  it.  was  not  "over"  them.  "  Between"  im- 
plies a  compact. 

"  We,  the  people  of  the  United  States,"  in  the  pream- 
ble, means  no  more  than  the  people  of  the  several  States, 
speaking  through  their  states.  If  the  names  of  the  sev- 
eral States  had  followed  this  phrase,  there  could  not  have 
been  any  question  ;  they  were  omitted  because  it  was 
not  known  how  many,  and  which,  states  would  ratify. 
The  expression  "ordain  and  establish'*'  is  qualified  by 
"to  form  a  more  perfect  union/'  indicating,  not  that  a 
new  government  was  ordained  and  established,  but  that 
an  old  one  was  made  more  perfect. 

The  Constitution  everywhere  recognizes  the  existence  of 
the  states.  The  Senate  is  elected  by  states ;  the  states  as 
such  are  districted  for  members  of  Congress.  The  Presi- 
dent and  Vice-President  are  chosen  by  Electors  in  states. 
Amendments  are  consented  to  by  states,  as  such.  As  the 
Constitution  became  effective  as  to  each  particular  State 
when  ratified  by  it,  it  is  only  by  compact  that  they  agree  to 
modify  or  restrict  themselves  in  the  power  of  amendment ; 
that  is,  when  all  the  states  promise  that  they  will  be  bound 
by  amendments  to  which  only  three-quarters  may  agree, 
it  is  still  a  compact. 

All  delegated  powers  are  delegated  in  trust,  wherefore 
it  is  absurd  to  say  that  the  states  are  federal  as  to  reserved 


TENDENCY    OF   POWER   IN   THE   U.  S.         233 

powers,  and  national  as  to  delegated  powers.  The  res- 
ervation to  the  states,  or  to  the  people  respectively,  of 
powers  not  delegated  to  the  United  States,  nor  prohibited 
to  the  states  as  provided  in  the  loth  Amendment,  means 
that  of  those  powers  which  remain  after  the  delegation  to 
the  United  States  some  go  to  the  states  and  the  remain- 
der are  still  in  the  people  of  the  states. 

It  is  true  that  sovereignty  is  single,  and  cannot  be  di- 
vided, but  the  exercise  of  sovereign  powers  may  be  divided, 
so  that  some  will  pertain  to  one,  others  to  another  agent. 
If  this  indivisible  something  is  transferred  to  the  govern- 
ment then  it  is  gone  from  the  states  and  from  the  people, 
which  certainly  cannot  be  the  case,  because  contrary  to 
the  fundamental  theory  that  sovereignty  is  in  the  people. 
It  cannot  be  transferred  to  the  people  of  the  United  States 
in  gross  ;  consequently,  it  must  remain  unimpaired  in 
the  people  of  the  several  states.  The  solution  of  the  ap- 
parent anomaly  is  found  in  the  doctrine  that  the  sovereign 
people  delegate  certain  powers  in  trust  to  both  the  State 
and  federal  governments.  Nevertheless,  politically  speak- 
ing, there  is  no  such  community  as  the  people  of  the 
United  States  regarded  as  constituting  one  nation.  The 
great  change  effected  by  the  constitution  was  in  introduc- 
ing a  government  in  the  place  of  a  Congress  of  diploma- 
tists from  the  states.  These  states,  after  severing  their 
connection  with  England,  had  severally  the  treaty-making 
power,  and  could  therefore  enter  into  the  Articles  of  Con- 
federation, which  constitute  a  mere  league  ;  but  when  it 
became  necessary  to  form  a  new  government,  they  could 
not  do  it  because  beyond  their  power.  Then  the  people 
of  the  several  states,  as  the  sources  of  power,  had  to  be 
consulted.  Under  the  Confederation  the  states  were 
superior,  and  the  central  government  inferior.  Under 
the  Constitution  the  two  are  co-ordinate. 


234  POLITICS. 

The  federal  and  state  organizations  divide  between 
them  the  delegated  powers  appertaining  to  the  govern- 
ment ;  and  as  of  course  each  is  divested  of  what  the  other 
possesses,  it  necessarily  requires  the  two  united  to  con- 
stitute the  entire  government.  Each  has  paramount  and 
supreme  authority  within  its  sphere,  and  they  are  to  this 
extent  equal,  and  sustain  the  relation  of  co-ordinate  gov- 
ernments. 

Federal  powers  extend  generally  to  the  external  or 
foreign  relations  of  the  whole  United  States,  and  to  the 
relations  of  the  states  with  each  other.  It  cannot  be 
claimed  that  under  the  general  provision  "To  make  all 
laws  which  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  constitution  in  the  government  of  the  United 
States,  or  in  any  department  or  officer  thereof/'*  Con- 
gress may  legislate  except  in  aid  of  the  enumerated 
powers. 

So  far,  theoretically,  the  whole  circle  of  governmental 
action,  both  as  to  external  and  internal  relations,  is  har- 
moniously filled,  but  there  are  certain  disturbing  influences 
growing  out  of  human  nature  and  human  conduct  which 
interfere  with  the  practical  working  of  the  scheme. 

The  state  governments  and  the  federal  government  are 
administered  by  different  persons  ;  the  objects  to  be  acted 
upon  by  the  reserved  powers  of  the  one,  and  the  dele- 
gated powers  of  the  other,  may  be  claimed  by  both. 
Moreover,  there  is  an  inherent  tendency  of  one  to  en- 
croach upon  the  other.  The  domain  of  the  reserved 
powers  of  the  states  may  be  said  to  be  the  battle-ground. 

Up  to  this  point,  the  State-rights  argument  has  cer- 
tainly great  cogency,  f  But,  if  we  follow  it  to  its  logical 

*  Art.  I.,  Sec.  8,  Cl.  18. 

f  In  this  resume  of  the  State-rights  doctrines,  extensive  use  has 


TENDENCY   OF   POWER   IN   THE    U.  S.         235 

conclusion,  we  cannot  avoid  ultimate  dissolution.  This 
was  clearly  seen  by  its  advocates.  Time  and  experience 
very  soon  taught  them  that  the  antagonism  which  existed 
in  theory  was  developing  in  fact,  and  would  reach  its 
climax  when  the  majority  of  electors  and  the  majority  of 
states  should  fall  together  on  one  side  of  a  geographical 
line,  and  the  minority  should  consider  their  reserved 
rights  as  states,  about  to  be,  or  actually,  invaded.  The 
crucial  question,  if  there  is  conflict,  who  shall  decide  ? 
had  to  be  answered.  Can  a  state  oppose  rightfully,  suffi- 
cient resistance  to  the  strong  tendency  on  the  part  of  the 
federal  government  to  encroach  upon  the  reserved  pow- 
ers, a  tendency  which,  undoubtedly,  is  continuous  ? 
The  answer  was  :  Under  our  system,  the  powers  of  gov- 
ernment are  divided  ;  one  portion  is  delegated  to  the 
federal  government,  another  to  the  state,  and  that  not  espe- 
cially delegated,  remains  with  the  state.  The  two  govern- 
ments are  co-ordinates,  not  superior  and  inferior ;  and  \ 
therefore  to  give  one  the  power  to  judge,  not  only  as  to  I 
the  extent  of  its  own  powers,  but  also  as  to  those  of  its  • 
co-ordinate,  and  to  enforce  its  decision,  would  destroy  ; 
the  equality  between  them  ;  would  deprive  them  of  the 
attribute  common  to  all  governments,  that  of  judging  in 
the  first  instance  of  the  extent  of  its  own  powers,  and 
would  reduce  them  from  the  position  of  equals,  to  that 
of  superior  and  subordinate.  Each  has  an  equal  right  to 

been  made  of  Calhoun's  '*  Discourse  on  the  Constitution  and  Gov- 
ernment of  the  United  States,"  and  occasionally  his  exact  lan- 
guage has  been  used.  It  furnishes,  certainly,  the  clearest  expo- 
sition of  the  full  length  and  breadth  of  that  side  of  the  great 
national  debate  whicli  engrossed  so  much  of  political  discussion 
for  three-quarters  of  a  century,  but  which,  after  all,  continually 
ranged  backward  and  forward,  over  the  same  narrow  ground. 
In  what  follows,  the  language  of  Jefferson,  Madison,  and  Hayne 
is  sometimes  quoted. 


236  POLITICS. 

judge  of  its  powers.  If  each  can  judge  of  the  powers 
of  the  other,  then  the  umpire  must  be  brute  force,  and 
necessarily  the  end  would  be,  either  consolidation  or  dis- 
union, and  a  destruction  of  the  system  ;  a  conclusion 
incompatible  with  the  idea  of  the  perfection  of  the  organ- 
ism. 

The  federal  government  in  carrying  out  its  powers,  can 
only  pass  laws  "  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers  ;  "  and  the 
determination  whether  a  law  is  necessary  and  proper  can- 
not rest  with  the  power  making  the  law. 

The  judicial  branch  cannot  decide  upon  the  extent  of 
the  powers  of  the  states,  and  of  the  United  States.  It 
constitutes  one  department  only,  which  is  merely  co-ordi- 
nate with  the  others,  whose  decisions  within  their  spheres 
are  equally  conclusive.  Moreover,  there  may  be  instances 
of  usurped  powers,  which  the  forms  of  the  Constitution 
would  never  draw  within  the  control  of  the  judiciary,  be- 
cause the  courts  can  only  decide  upon  isolated  cases,  as 
they  arise,  between  citizens  ;  but  as  neither  the  United 
states,  nor  the  states,  can  be  made  defendants  without 
their  consent,  there  cannot  be  any  decision  which  will 
bind  them  specifically.  The  question,  then,  naturally 
suggests  itself,  what  prevention  is  there  against  encroach- 
ments on  either  side  ?  The  answer  is,  that  the  only  pro- 
tection is,  for  each  to  have  a  negative  upon  the  acts  of 
the  other  when  they  come  in  conflict.  The  qualification 
upon  this  right  is  moral,  not  legal  ;  the  negative  should 
be  only  in  cases  where  there  is  a  deliberate,  palpable  and 
dangerous  breach  of  the  Constitution.  Will  this,  neces- 
sarily, lead  to  conflict  ?  No,  if  we  assume  that  reason  is 
to  sway,  and  the  two  opposed  powers  are  anxious  to  find 
a  way  out  of  the  difficulty.  In  the  event  of  a  negative 
interposed  by  a  state  to  an  alleged  usurping  act  of  the 


TENDENCY   OF   POWER   IN   THE   U.  S.         237 

federal  government,  the  latter  should  invoke  the  amend- 
ing power,  and  call  all  the  states  in  consultation,  and  so 
amend  the  Constitution  as  to  meet  the  difficulty.  If  no 
such  course  is  taken,  what  then  ? 

This  brings  the  State-rights  position  to  its  inevitable 
outcome.  The  state  may  secede  from  the  Union.  The 
ultimate  sovereignty  lies  in  the  people  of  the  several  States. 
In  their  primal  capacity  within  the  states,  they  created 
the  Constitution,  and  as  between  them,  in  this  capacity, 
the  Constitution  is  but  a  compact.  "  Hence,"  to  use  the 
words  of  Calhoun,  "a  state,  acting  in  its  sovereign 
capacity,  and  in  the  same  manner  in  which  it  ratified 
and  adopted  the  Constitution,  may  be  guilty  of  violating 
it  as  a  compact,  but  cannot  be  guilty  of  violating  it  as  a 
law.  The  case  is  the  reverse  as  to  the  action  of  its  citi- 
zens, regarding  them  in  their  individual  capacity." 
Therefore,  a  state  can  interfere  within  its  own  limits, 
for  the  purpose  of  arresting  an  act  of  the  federal  govern- 
ment, in  violation  of  the  federal  Constitution,  and  to 
prevent  the  delegated  from  encroaching  on  the  reserved 
powers,  and  the  state  can  decide  on  the  mode,  and  also 
the  measures  to  be  adopted  to  arrest  the  act.  It  must  be 
borne  in  mind,  that  whenever  there  is  a  conflict  between 
the  delegated  and  the  reserved  powers,  the  majority  of 
states  and  also  of  population  will  be  on  the  side  of  the 
party  in  power,  which  has  control  of  the  departments  ex- 
ercising the  delegated  powers  which  may  be  brought  in 
question  ;  and  the  resisting  state  or  states  will  be  in  the 
minority,  so  that  the  stress  will  naturally  be  on  the  side  of 
the  federal  government. 

As  to  the  individual  citizen,  it  is  true,  he  owes  obedi- 
ence to  both  governments.  Why  ?  because  his  state  com- 
manded him  to  obey  ;  but  the  state  can  determine  in  the 
last  instance  whether  his  obedience  shall  be  withdrawn 


238  POLITICS. 

from  the  federal  government.  The  state  is  the  authority 
which  commanded  him  to  obey  the  federal  Constitution  ; 
that  is,  the  state  did  so  by  its  ratification  ;  and  by  an 
analogous  process,  that  is,  through  a  state  convention,  it 
can  command  him  to  withdraw  his  obedience. 

It  is  thus  plain  that  following  the  "  compact "  theory, 
we  are  landed  irresistibly  in  the  doctrine  of  secession. 

The  opposite  view  of  the  federal  government  may  be 
very  briefly  stated  in  the  form  of  affirmations  of  gen- 
eral conclusions  drawn  from  the  history  of  the  country 
up  to  the  time  of  the  adoption  of  the  Constitution,  and 
from  the  whole  of  the  instrument  construed  together.  It 
has,  perhaps,  never  been  more  succinctly  presented  than 
by  Webster,  in  stating  his  main  propositions,  when 
answering  Calhoun  in  the  Senate  in  February,  1833,  at 
the  time  the  latter  presented  his  nullification  resolutions. 

1.  "The  Constitution  of  the  United  States   is  not  a 
league,  confederacy,  or  compact  between  the  people  of  the 
several  states  in  their  sovereign  capacities  ;   but  a  govern- 
ment proper,  founded  on  the  adoption  of  the  people,  and 
creating  direct  relations  between  itself  and  individuals. 

2.  "  No  state  authority  has  power  to  dissolve  these  re- 
lations ;  nothing  can  dissolve  them  but  revolution  ;  and 
consequently,  there  can  be  no  such  thing  as  secession 
without  revolution. 

3.  "There  is  a  supreme  law,  consisting  of  the  Consti- 
tution of  the  United  States,  and  acts  of  Congress  passed 
in  pursuance  of  it,  and  treaties  ;    and,  in  cases  not  ca- 
pable of  assuming  the  character  of  a  suit  in  law  or  equity, 
Congress  must  judge  of,  and   finally  interpret,   this  su- 
preme law  so  often  as  it  has  occasion  to  pass  acts  of  legis- 
lation ;  and  in  cases  capable  of  assuming,  and  actually 
assuming,  the  character  of  a  suit,  the  Supreme  Court  of 
the  United  States  is  the  final  interpreter. 


TENDENCY  OF   POWER  IN  THE  U.  S.        239 

4.  ' '  An  attempt,  by  a  state,  to  abrogate,  annul,  or 
nullify  an  Act  of  Congress,  or  to  arrest  its  operation 
within  her  limits,  on  the  ground  that,  in  her  opinion, 
such  law  is  unconstitutional,  is  a  direct  usurpation  on 
the  just  powers  of  the  general  government,  and  on  the 
equal  rights  of  other  States ;  a  plain  violation  of  the 
Constitution,  and  a  proceeding  essentially  revolutionary 
in  its  character  and  tendency. " 

Strange  as  it  may  seem,  this  long  controversy  as  to  the 
essential  character  of  our  institutions  owed  much  of  its 
intensity  to  the  peculiar  fact  that  the  structure  of  the 
government  was  shaped  under  the  eyes  of  those  who 
commenced  the  debate,  and  only  one  generation  removed 
from  those  who  pursued  it  most  bitterly.  Jefferson  and 
Hamilton  began  it,  and  Webster  and  Calhoun  continued 
it  up  to  within  a  decade  of  the  civil  war.  Both  sides  \ 
overlooked  the  historical  truth  that  every  great  common- 
wealth is  made  up  of  an  aggregation  of  what,  at  some 
stage,  were  smaller  sovereignties,  and  that  in  the  ordinary 
course  of  normal  development,  time  itself,  and  the 
operation  of  universal  laws,  will  bring  about  the  merging 
of  one  into  the  other,  or,  a  fusion  of  all  into  one.  They 
saw  too  closely  the  processes  through  which  the  two 
opposing  forces,  which  always  exist  at  some  stage  of 
every  national  growth,  those  of  repulsion  and  those  of 
integration,  adjusted  temporarily  their  differences,  in 
the  attempt  permanently  to  arrest  the  nation  at  what  is, 
after  all,  only  a  transition  stage,  by  establishing  a  state 
midway  between  a  confederacy  and  a  nation.  They 
were  powerfully  impressed  with  the  purely  legal  ques- 
tions  involved  ;  they  were  haggling  over  the  debates  of 
the  Constitutional  Convention,  and  the  very  words  of 
the  bond,  but  failed  to  cast  their  eyes  back  over  the 
whole  course  of  colonial  growth  during  the  one  hun- 


240  POLITICS. 

dred  and  sixty-eight  years  between  the  landing  at 
Jamestown  and  the  skirmish  at  Lexington,  and  note 
that  every  important  political  change  was  a  step  in  the 
growth  of  a  nation.  In  looking  back  now  over  this  de- 
bate, one  cannot  but  be  struck  with  its  narrowness.  It 
moves  over  a  very  restricted  surface,  and  yet,  perhaps,  it 
could  not  have  been  otherwise,  in  view  of  the  necessity 
all  parties  were  under  to  look  to  a  written  instrument 
as  the  final  test  of  their  opposing  arguments.* 

*  As  early  as  1798  the  Supreme  Court  of  the  United  States  had 
occasion  to  pass  on  the  relation  of  the  States  to  the  Federal  Gov- 
ernment. In  the  case  of  Calder  vs.  Ball  (Dallas  Rep.  III.  387), 
Justice  Chase,  speaking  for  the  Court,  said  :  "It  appears  to  me  a 
self -evident  proposition,  that  the  several  state  legislatures  retain  all  j> 
the  powers  of  legislation,  delegated  to  them  by  the  state  con- 
stitutions, which  are  not  expressly  taken  away  by  the  Constitution 
of  the  United  States.  The  establishing  courts  of  justice,  the  ap- 
pointment of  judges,  and  the  making  regulations  for  the  adminis- 
tration of  justice  within  each  State,  according  to  its  laws,  on  all 
subjects  not  entrusted  to  the  Federal  Government,  appears  to  me 
to  be  the  peculiar  and  exclusive  province  and  duty  of  the  state 
legislatures.  All  the  powers  delegated  by  the  people  of  the  United 
States  to  the  Federal  Government  are  defined,  and  no  constructive 
powers  can  be  exercised  by  it,  and  all  the  powers  that  remain  in 
the  state  government  are  indefinite."  Again,  in  1837,  in  Briscoe 
vs.  Bank  of  Kentucky  (Peters  Rep.  XI.  317),  it  was  said  :  "  The 
Federal  Government  is  one  of  delegated  powers.  All  powers  not  \ 
delegated  to  it,  or  inhibited  to  the  states,  are  reserved  to  the 
states  or  to  the  people."  Chief  Justice  Marshall  said,  in  the  case 
of  M'Culloch  vs.  the  State  of  Maryland,  in  1819  (Wheaton  IV. 
405):  "This  Government  is  acknowledged  by  all  to  be  one  of 
enumerated  powers.  The  principle  that  it  can  exercise  only  the  \ 
powers  granted  to  it,  would  seem  too  apparent  to  have  required 
to  be  enforced  by  all  those  arguments  which  its  enlightened 
friends,  while  it  was  pending  before  the  people,  found  it  neces- 
sary to  urge.  That  principle  is  now  universally  admitted.  But 
the  question  respecting  the  extent  of  the  powers  actually  granted  is 
perpetually  arising,  and  will  probably  continue  to  arise,  as  long  as 


TENDENCY  OF  POWER  IN  THE  U.  S.        24! 

Our  American   constitutional  system    rests  upon    the 
claim  that  the  citizen  is  subject  to  two  sovereigns,  the 

our  system  shall  exist."  In  1865,  the  same  court,  in  Gilman  vs. 
Philadelphia  (Wallace  Rep.  III.  730),  said  :  "  The  states  may  ex- 
ercise concurrent  or  independent  power  in  all  cases  but  three  :  I. 
Where  the  power  is  lodged  exclusively  in  the  Federal  Constitu- 
tion ;  2.  Where  it  is  given  to  the  United  States  and  prohibited  to 
the  states  ;  3.  Where,  from  the  nature  and  subjects  of  the  power, 
it  must  necessarily  be  exercised  by  the  National  Government  ex- 
clusively." In  1868,  the  question  came  before  the  Supreme 
Court,  as  to  the  effect  of  an  ordinance  of  secession  adopted  by  a 
state  at  the  outbreak  of  the  rebellion,  followed  by  actual  war,  the 
final  subjugation  of  the  state,  and  its  reconstruction  in  the  union  ; 
and  on  this  occasion  Chief-Justice  Chase,  in  Texas  vs.  White 
(Wallace,  VII.  724),  said  :  "  The  union  of  the  states  never  was  g 
purely  artificial  and  arbitrary  relation.  It  began  among  the 
colonies,  and  grew  out  of  common  origin,  mutual  sympathies, 
kindred  principles,  similar  interests,  and  geographical  relations. 
It  was  confirmed  and  strengthened  by  the  necessities  of  war,  and 
received  definite  form  and  character  and  sanction  from  the  Articles 
of  Confederation.  By  these  the  union  was  solemnly  declared  to 
be  "  perpetual."  And  when  these  Articles  were  found  to  be  inade- 
quate to  the  exigencies  of  the  country,  the  Constitution  was  or- 
dained, to  form  a  more  perfect  union.  It  is  difficult  to  convey  the 
idea  of  indissoluble  unity  more  clearly  than  by  these  words, 
What  can  be  indissoluble,  if  a  perpetual  union,  made  more  per- 
fect, is  not  ?  But  the  perpetuity  and  indissolubility  of  the  Union 
by  no  means  implies  the  loss  of  distinct  and  individual  existence, 
or  of  the  right  of  self-government  by  the  states.  Under  the 
Articles  of  Confederation  each  state  retained  its  sovereignty, 
freedom,  and  independence,  and  every  power,  jurisdiction,  and  right 
not  expressely  delegated  to  the  United  States.  Under  the  Con- 
stitution, though  the  powers  of  the  states  were  much  restricted, 
still,  all  powers  not  delegated  to  the  United  States,  nor  prohibited 
to  the  states,  are  reserved  to  the  states  respectively  or  to  the  peo- 
ple. *•  *  *  When,  therefore,  Texas  became  one  of  the  United 
States,  she  entered  into  an  indissoluble  relation.  All  the  obliga- 
tions of  perpetual  union,  and  all  the  guarantees  of  republican 
government  in  the  union,  attached  at  once  to  the  state.  The  act 
II 


242  POLITICS. 

State  and  the  United  States.  Taking  away  the  word 
sovereign,  which  imports  the  highest  power,  we  may  say, 
instead,  that  the  citizen  is  subject  to  two  jurisdictions. 
But  is  it  not  the  case  in  all  governments  that  the  citi- 
zens are  under  two,  and  sometimes  more  than  two,  jurisdic- 
tions ?  For  instance,  within  a  state,  a  person  may  be  sub- 
je,ct  to  the  jurisdiction  of  a  city,  and,  at  the  same  time, 
of  a  county,  and  finally,  of  the  state  itself.  As  to  two  of 
these,  the  county  and  the  city,  they  are  acting  within  a 
limited  range  of  authority,  and  cannot  legally  overstep 
it.  Even  the  legislative,  executive,  and  judicial  branches 
of  the  state  are  laboring  under  restrictions.  As  to  all  the 
inferior  jurisdictions  to  which  the  citizen  is  subject  with- 
in his  state,  the  legislature  may  change  them  unless  there 
are  prohibited  clauses  in  the  state  constitution.  So  that 
for  the  highest  and  final  authority  we  must  go  back  to 
the  people.  We  reach  this  point,  then,  that  the  people 
write  down  in  their  state  constitution  the  particulars  of 
the  government  which  they  themselves  are  willing 
to  submit  to,  and  they  submit  themselves  to  a  variety  of 
jurisdictions,  of  which  the  departments  of  the  state  gov- 
ernments are  some  among  many.  This  occurs  in  all  the 
states.  In  addition,  the  citizen  is  subject  to  the  jurisdic- 
tion of  a  number  of  federal  departments  and  officers. 
Now,  it  must  always  be  borne  in  mind,  that  it  is  a  funda- 
mental right,  not  only  of  individuals  living  under  Anglo- 

which  consummated  her  admission  into  the  union  was  something 
more  than  a  compact ;  it  was  the  incorporation  of  a  new  mem- 
ber into  the  political  body  ;  and  it  was  final.  The  union  between 
Texas  and  the  other  states  was  as  complete,  as  perpetual,  and 
as  indissoluble  as  the  union  between  the  original  states.  There 
was  no  place  for  reconsideration,  or  revocation,  except  through 
revolution  or  through  consent  of  the  states/'  The  ordinance  of 
secession  was  held  to  be  null,  and  Texas  continued  to  be  a  state 
of  the  union  notwithstanding  the  rebellion. 


TENDENCY  OF  POWER  IN  THE   U.  S.        243 

American,  but  we  may  say  under  all  civilized  institu- 
tions, to  challenge  every  person  who  demands  any  duty 
from,  or  claims  any  right  against  him,  to  show  the  law 
which  sustains  the  claim,  and  if  he  disputes  its  applica- 
bility, or  denies  that  the  supposed  statute  is  a  law,  he 
can  have  the  question  decided  by  some  competent  court. 

Government  is  not  a  series  of  abstract  propositions,  but 
a  practical  working  system.  A  great  number  of  people 
are  living  together  within  a  certain  territory,  having  in- 
tricate relations  with  one  another.  Each  act  of  every 
body  of  persons  in  authority,  whether  called  a  congress, 
or  a  state  legislature,  or  a  board  of  aldermen,  or  select- 
men, or  superiors,  or  school  trustees,  or  of  a  single  per- 
son, whether  called  a  president,  or  governor,  or  mayor, 
or  sheriff,  stands  by  itself,  and  when  brought  to  bear  upon 
the  citizen,  must,  if  questioned,  find  its  authority  in 
some  delegation  of  power  from  the  people.  It  therefore 
becomes  purely  a  question  of  construction  in  each  case. 
If  the  power  comes  from  the  state  legislature,  the  inquiry 
is,  Has  the  state  constitution  prohibited  the  legislature 
from  passing  the  particular  act  ?  If  the  power  comes  from 
Congress,  the  question  is,  is  it  within  the  enumerated 
grants  of  power  in  the  Federal  Constitution  ?  And,  de- 
scending in  the  scale,  if  a  power  is  exercised  by  a  city,  or 
a  county,  or  a  township  officer,  its  source  also  must  be 
found  in  a  previous  grant  of  authority. 

The  fundamental  idea  which  underlies  our  whole  gov- 
ernmental system  is,  that  its  jural  relations  are  not  be- 
tween itself  and  masses  of  citizens  as  masses,  whether  in 
states,  counties,  cities,  or  smaller  subdivisions,  but  be- 
tween every  individual  and  the  particular  department  and 
officer  who  exacts  obedience  from  him.  States,  counties, 
and  cities  are  organizations  arranged  conveniently  to  ex- 
press the  political  will  of  the  particular  groups  within 


244 


POLITICS. 


their  limits  upon  those  subjects  which  are  within  their 
jurisdiction,  or  are  instrumentalities  to  execute  the  sov- 
ereign will  of  a  higher  power  in  the  general  State.  In 
short,  the  government,  whether  general  or  local,  is  on 
one  side,  and  the  citizen  on  the  other  as  to  jural  relations, 
and  at  every  step  of  the  former  the  latter  may  challenge 
its  right. 

As  between  the  Federal  Government  and  the  states,  it  is 
no  part  of  the  duty  of  the  State  to  keep  general  watch  and 
ward  over  its  citizens,  to  see  that  the  federal  authorities 
do  not  oppress  the  citizen,  nor  to  warn  off  trespassers 
upon  the  reserved  rights  of  the  states.  Each  act  of  all  the 
branches  of  government,  from  the  highest  to  the  lowest, 
necessarily  implies  subject  and  object  ;  that  is,  an  act  to 
be  done  by  some  one  upon  some  one  or  some  object  ; 
and  the  relationship  which  is  established  is  between  the 
body  of  persons,  or  single  officer,  who  wills  the  act,  and 
the  person  who  executes  the  act  or  upon  whom  it  is  to  be 
executed. 

The  State-rights  theorists  insisted  upon  viewing  the  re- 
lations of  the  citizen  to  the  Federal  Government  as  passing 
through  the  state  organism.  Metaphorically,  there  was 
in  their  view  a  wall  of  state  jurisdiction  around  the  con- 
fines of  the  state,  and  the  federal  edicts  could  only  reach 
the  citizens  within  by  going  through  the  gateways,  and 
after  passing  the  inspection  of  the  watchers  posted  there 
by  State  authority. 

The  extreme  State-rights  theories  were  so  purely  ab- 
stractions that  they  would  very  likely  have  died  out  with- 
out assuming  the  importance  they  did  assume,  had  it  not 
been  that  they  very  early  became  the  refuge  of  the  slave 
States.  These  states  very  soon  felt,  though  unwilling  for 
a  long  time  to  admit  it,  that  they  were  falling  to  the  rear 
in  wealth  and  population. 


TENDENCY  OF  POWER  IN  THE   U.  S. 

Their  leaders  of  political  thought  seized  upon  and 
nourished  the  extreme  views  of  the  sovereignty  of  the 
states  as  a  shield  to  their  weakness.  Calhoun  very  clearly 
comprehended  that  a  dominant  party  is  always  in  favor  of 
J.  an  enlargement  of  delegated  powers,  and  that  strict  con- 
struction was  only  a  weapon  of  defence  in  the  hands  of 
the  minority  ;  so  that  as  long  as  states  were  divided  by 
opposing  parties,  the  danger  of  violent  collision  was  re- 
mote. What  he  feared  was,  that  the  numerical  majority 
and  state  majority  would  both  concentrate  in  the  North, 
and  he  distinctly  predicted  that  when  this  occurred  there 
would  be  a  crisis.  If  the  social  and  economic  causes 
which  mainly  contributed  to  bring  on  the  civil  war  had 
not  existed,  it  is  highly  probable  that  the  consolidation  of 
the  system  would  have  gone  on  with  ebb  and  flow  of  gain 
between  the  delegated  and  reserved  powers,  but  the  ten- 
dency, from  the  very  nature  of  the  conditions,  could  not 
have  been  otherwise  than  toward  the  supremacy  of  the 
central  power,  and  for  various  reasons. 

The  business  of  any  government,  within  the  limits  of 
its  territory,  is  with  the  relations  of  its  citizens  to  each 
other,  or  those  actions  which  are  entirely  personal  to  the 
individual  that  may  eventually  affect  the  relations  of 
citizens  to  each  other.  For  instance,  as  an  example,  as 
to  relations  between  citizens,  a  law  may  provide  a  punish- 
ment for  stealing  ;  this  regulates  a  relation  that  may  arise 
between  A,  the  owner  of  property,  and  B,  who  steals  it 
from  him  ;  or,  the  mere  existence  of  the  law  may  prevent 
B  from  an  act,  the  stealing,  which  he  would  otherwise  be 
guilty  of.  An  example  of  a  law  affecting  only  the  person 
might  be  one  which  compels  a  child  to  attend  school  be- 
tween certain  ages. 

The  theory  of  our  dual  system  is  that  the  citizen  has 
two  sets  of  relations  and  interests  :  one  which  he  has  in 


246  POLITICS. 

common  with  the  other  citizens  of  his  own  state,  and 
another  which  he  has  in  common  with  all  the  citizens  of 
the  United  States ;  and  also  that  frequently  the  same  re- 
lations and  interests  have  a  double  quality  :  are  common 
at  the  same  time  to  the  state  and  to  the  Federal  Union. 
Now,  if  the  proportion  between  the  relations  and  interests 
of  individual  citizens,  which  they  have  only  in  common 
with  the  other  citizens  of  their  state,  and  the  relations  and 
interests  which  they  have  in  common  with  all  the  citizens 
of  the  United  States,  had  remained  always  the  same,  the 
federal  would  not  have  grown  at  the  expense  of  the  state 
government  ;  but,  through  the  consolidation  of  the  popu- 
lation, the  bringing  remote  points  of  the  Union  together 
by  railroads,  so  that  it  now  requires  less  than  one-half  the 
time  to  go  from  San  Francisco  to  New  York  that  it  took 
Jefferson,  in  1790,  to  go  from  Monticello  to  the  latter  city  ; 
through  the  localization  and  specialization  of  industries  ; 
through  the  extension  of  sympathies,  and  religious  and 
intellectual  bonds  of  fellowship,  the  duties  of  the  Federal 
Government  have  been  enormously  extended.  The  rela- 
tions and  interests  range  through  the  whole  life  of  the 
people.  In  regulating  commerce,  Congress  has  to  deal 
with  new  factors,  the  railroads  and  telegraphs,  and  in 
consequence  of  the  expansion  of  inter-state  water  trans- 
portation, it  and  the  courts  have  been  obliged  to  stretch 
their  jurisdiction  farther  and  farther  into  state  centres. 
Necessarily,  banking  has  become  national,  and  so,  no 
doubt,  many  other  things  that  now  are  supposed  to  be 
entirely  within  the  purview  of  state  authority,  will  be 
taken  hold  of  by  the  Federal  Government. 

A  noticeable  recognition  of  the  contraction  of  state 
and  the  expansion  of  national  relations  and  interests,  is 
manifested  in  the  opposite  characters  of  the  changes  which 
have  taken  place  in  the  Federal  Constitution,  and  many  of 


TENDENCY   OF   POWER   IN   THE   U.  S. 


the  State  constitutions.  The  earlier  state  constitutions 
contain  little  more  than  a  bill  of  rights,  in  addition  to  the 
outlines  of  the  departments  of  government.  Since  1868, 
fourteen  of  the  ante-bellum  states  have  entirely  remodeled 
their  constitutions  ;  all,  except  Pennsylvania,  Illinois  and 
California,  it  is  true,  because  of  the  social  and  govern- 
mental changes  consequent  upon  the  war  of  the  rebellion. 
In  all  of  them,  nevertheless,  the  salient  modifications  have 
been  in  the  remarkable  limitation  of  legislative  power. 
The  tendency  is,  to  throw  purely  local  affairs  back  into 
the  hands  of  the  townships,  counties,  and  cities.  For 
example,  in  the  new  Constitution  of  California,  there  is  a 
specification  of  thirty-three  classes  of  subjects,  concerning 
which  the  legislature  cannot  make  local,  or  special  laws. 

In  that  State  the  volume  of  statutes  of  187  7-8  contained 
about  eleven  hundred  pages,  and  that  of  the  next  year 
after  the  adoption  of  the  new  Constitution  less  than  two 
hundred,  showing  an  extraordinary  diminution  of  legis- 
lative activity.  It  is  true,  that  the  extent  of  the  law-mak- 
ing power  in  the  state  is  not  diminished.  The  change 
indicates  that  the  people  wish  to  keep  the  greater  part  of 
the  power,  which  usually  is  exercised  by  the  state  legis- 
lature, in  their  own  hands,  because  it  concerns  only  those 
relations  which  extend  to  the  circle  of  the  township,  the 
county,  and  the  city. 

On  the  other  hand,  since  the  addition  of  the  first  twelve 
amendments  to  the  Federal  Constitution  shortly  after  its 
adoption,  the  changes  made  by  the  thirteenth,  fourteenth 
and  fifteenth  amendments  have  extended  the  power  of 
Congress. 

Again,  the  tendency  of  the  departments  exercising  dele- 
gated power  on  behalf  of  all  the  stages,  and  all  the  people, 
will  be  to  enlarge  their  powers  by  construction.  That 
great  reserve  of  power,  which  is  the  background  of  every 


248  POLITICS. 

government,  and  which  with  us  lies  in  the  whole  body  of 
the  people,  and  is  to  be  used  by  them  in  case  of  need, 
will  be  drawn  upon  more  and  more  in  aid  of  the  majority 
which  for  the  time  being  controls  the  Federal  Govern- 
ment. 

Under  the  authority  granted  by  the  Constitution  to 
Congress,  are  the  following  powers: 

"To  levy  and  collect  taxes,  duties,  imposts,  and  ex- 
cises, to  pay  the  debts,  and  provide  for  the  common 
defence  and  general  welfare  of  the  United  States. " 

"  To  borrow  money  on  the  credit  of  the  United  States." 

"To  regulate  commerce  with  foreign  nations,  and 
among  the  several  States,  and  with  the  Indian  tribes." 

To  establish  "uniform  laws  on  the  subject  of  bank- 
ruptcies throughout  the  United  S.ates." 

"To  establish  post-offices  and  post- roads." 

"  To  declare  war." 

"To  raise  and  support  armies." 

"  To  provide  and  maintain  a  navy." 

"To  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union ; "  and  finally,  the  comprehensive 
power,  "To  make  all  laws,  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  powers, 
and  all  other  powers,  vested  by  this  Constitution  in  the 
Government  of  the  United  States,  or,  in  any  department 
or  officer  thereof. "  Under  these  powers,  the  area  of  con- 
gressional action  will  be  continually  enlarging,  because, 
in  the  first  instance,  Congress  must  decide  as  to  whether 
the  subject-matter  to  be  accomplished  is  within  their 
grant  of  powers,  and  secondly,  whether  the  means  pro- 
posed are  also  within  the  same  limits.  Hence,  two  re- 
sults are  sure  to  follow:  a  tendency  in  Congress  to  enlarge 
its  powers,  and  the  claim  that  it  is  the  sole  judge  of  the 
means  to  be  used  to  carry  its  express  powers  into  effect. 


TENDENCY  OF  POWER  IN  THE   U.  S.        249 

Under  the  claim  that  it  is  the  only  judge  of  the  instru- 
mentalities to  be  used  to  carry  the  express  powers  into 
operation,  an  enormous  extension  of  power  can  be  had 
by  Congress.  The  courts  cannot  interfere  upon  the 
ground  that  the  means  are  not  appropriate;  they  can  go  no 
farther  than  to  define  the  limits  of  the  power.  Then 
again,  Congress  is  also  the  sole  judge  whether  a  proper 
state  of  facts  exists  calling  for  the  exercise  of  any  of  the 
enumerated  powers.  It  can,  for  instance,  as  previously 
suggested,  decide  as  a  fact  whether  a  war  exists,  and  then 
can  call  into  exercise  the  vague  but  almost  unlimited 
mass  of  war  powers.  It  can  go  to  almost  any  extreme  in 
deciding  what  relates  to  inter-state  and  foreign  commerce. 
Upon  those  subjects  which  are  purely  political — that  is, 
those  which  touch  more  particularly  the  relations  between 
communities,  as  distinguished  from  those  rights  which 
are  purely  personal ;  as,  that  no  one  shall  be  deprived  of 
life,  liberty,  or  property,  without  due  process  of  law,  the 
Federal  Government  can,  by  construction,  stretch  its 
jurisdiction  to  almost  any  extent  within  the  range  of 
political  action.  Hence,  the  inevitable  normal  tendency, 
under  a  system  like  ours,  is,  to  the  absorption  of  power 
in  the  central  government,  and  the  breaking  down  of 
state  lines.  The  civil  war  played  sad  havoc  with  all  the 
previous  abstractions  that  had  puzzled  our  politicians. 
Theoretically,  the  several  states  in  rebellion  were  never  out 
of  the  Union,  and  although  their  citizens  had  banded  to- 
gether in  insurrection,  they  were  only  individual  criminals, 
and,  as  soon  as  the  war  was  over,  should  have  been  al- 
lowed to  resume  their  old  relations,  and  should  have 
been  permitted  to  send  members  of  the  House  of  Repre- 
sentatives and  of  the  Senate  to  Washington,  though,  at 
the  same  time,  these  law-breakers  could  be  individually 
pursued  and  punished.  It  is  evident  that,  under  all  the 
10* 


250  POLITICS. 

novel  circumstances,  the  old  theories  were  at  fault.  It 
was  necessary  to  find  a  new  standpoint.  The  fact  had 
to  be  recognized  that  there  was  a  nation,  and  that  one- 
half  of  it  was  prostrate,  disorganized,  socially  and  politi- 
cally. Congress  did  what  it  always  will  do  when  there  is 
a  crisis  :  it  was  its  own  judge  of  the  extent  of  its  political 
powers,  and  it  stretched  those  powers,  so  as  to  cover  the 
exigencies  of  the  case  in  hand.  We  may  say  that  this  makes 
of  the  Constitution  but  a  sheet  of  rubber,  to  be  stretched 
to  suit  every  occasion.  In  a  sense,  it  is.  It  will  always 
be  worked  in  the  interest  of  those  having  control  of 
the  federal  government.  In  times  of  peace,  the  encroach- 
ments will  be  step  by  step,  in  one  instance  after  another, 
perhaps  at  long  removes.  The  States  as  States  will  im- 
perceptibly lose  power  and  importance,  and  the  federal 
government  will  as  imperceptibly  become  stronger  and 
more  important.  Forms  will  remain,  but  the  substance 
of  power  will  concentrate  in  Congress.  The  gravitation  of 
power  will  continually  be  toward  this  common  centre. 

A  pure  confederacy  is  necessarily  short-lived,  because 
the  enforcement  of  the  central  authority  can  only  be 
upon  a  whole  community,  an  entire  political  body ;  in 
other  words,  war  has  to  be  declared,  if  the  community 
disregard  the  law.  In  a  war,  all  the  people  of  the  op- 
posed community  become  enemies,  and  in  the  recalci- 
trant member  of  a  confederacy,  all  become  delinquents. 
The  real  aim  of  every  war  is  the  destruction  of  the  op- 
posed community.  Humanitarian  or  international  con- 
siderations may  restrain  the  victor,  but  these  only  abridge 
the  exercise  of  his  right.  War  within  a  political  organism 
to  enforce  a  law,  is  practically  suicide. 

The  Constitution  of  the  new  German  Empire  provides 
that:  "If  the  States  of  the  Union  shall  not  fulfil  their 
constitutional  duties  to  the  Union,  proceedings  may  be 


TENDENCY  OF  POWER  IN  THE   U.  S.        251 

instituted  against  them  by  execution.  This  execution 
shall  be  ordered  by  the  Bundesrath,  and  enforced  by  the 
Emperor." 

This  is  a  continuation  of  a  power  vested  in  the  old 
Bund,  and  its  attempted  exercise  against  Prussia  brought 
on  the  war  of  1866,  between  that  kingdom  and  Austria, 
and  the  south  German  States.  When,  however,  several 
states,  before  sovereign,  unite  for  political  purposes,  and 
invest  the  central  authority  with  power  to  make  laws, 
which  act  directly  upon  individuals  within  the  States, 
and  abandon  their  sovereignty  so  far  as  to  permit  the 
central  power  to  enter  within  their  borders,  and  take' 
hold  of  the  individuals  who  disobey  the  laws,  and  punish 
them  for  their  disobedience,  then  the  State  has  abandoned 
the  chief  element  of  its  sovereignty,  and  the  combined 
States  constitute  no  longer  a  confederacy. 

As  suggested  above,  the  confederacy,  and  all  its  modi- 
fications, are  but  transition  stages  in  political  growth, 
from  the  smaller  single  to  the  larger  single  state  ;  they 
are  only  artificial  ways  of  bringing  about  that  expansion 
and  fusion  which  exterior  accidents,  as  wars,  or  interior 
accidents,  as  revolutions,  may  arrest  or  destroy,  but 
which  ordinarily  go  on  by  slow  and  natural  processes  in 
the  formation  of  every  great  nation.* 

*  It  is  worth  noting,  as  illustrative  of  the  vast  change  in  the 
general  estimation  concerning  Federal  and  State  official  honors,  be- 
tween the  present  time  and  the  early  days  of  the  republic,  that 
Washington  at  times  met  with  difficulty  in  filling  the  public  offices. 
When  Randolph  resigned  the  Secretaryship  of  State,  the  President 
offered  the  office  to  Patterson,  King,  Patrick  Henry,  Charles 
Cotesworth  Pinckney,  and  others.  It  was  almost  impossible  to 
find  a  person  to  accept  the  war  department.  While  Jay  was 
engaged  in  his  mission  to  England,  to  undertake  which  he  had 
resigned  the  Chief-Justiceship  of  the  United  States  Supreme  Court, 
he  was  elected  Governor  of  New  York,  and  returned  to  take  that 


POLITICS. 


place  as  one  of  greater  honor  than  any  he  could  receive  under  the 
federal  government.  (Charles  Francis  Adams  :  '  '  The  Life  and 
Works  of  John  Adams,"  I.  p.  483.) 

When  it  was  hinted  that  Washington  intended  to  appoint  John 
Quincy  Adams  United  States  District  Attorney,  his  father  wrote 
to  his  wife  that  he  hoped  their  son  would  not  accept  the  office, 
saying  that  he  did  not  wish  him  "  to  play  at  small  games  in  the 
executive  of  the  United  States  ;  "  and  adding  :  "  I  had  much  rather 
he  should  be  the  State  attorney  for  Suffolk."  (Ibid,  I.  p.  463.) 

In  the  work  already  cited,  p.  449,  it  is  remarked  :  "  Through- 
out the  administration  of  General  Washington  there  is  visible 
among  public  men  a  degree  of  indifference  to  power  and  place 
which  forms  one  of  the  most  marked  features  of  that  time.  More 
than  once  the  highest  cabinet  and  foreign  appointments  went 
begging  to  suitable  candidates,  and  begged  in  vain." 

The  incident  is  familiar  of  the  disputed  point  of  etiquette  which 
arose  when  President  Washington  visited  Boston,  whether  Han- 
cock, the  Governor  of  the  State,  should  come  without  the  city  to 
meet  the  Chief  Magistrate  of  the  republic,  or,  whether  the  latter 
should  go  into  the  city  and  first  call  on  the  governor.  Hancock 
had  the  good  sense  to  give  way.  It  is  evident  that  such  a  question 
could  not  have  arisen  had  there  not  been  a  strong  support  in 
public  feeling  for  the  attempted  assertion  that  the  State  was  the 
superior,  and  the  Federal  Union  the  inferior.  At  the  present  day, 
federal  positions  outweigh  in  honor  those  of  the  State.  Governors 
eagerly  resign  their  offices  to  go  to  the  United  States  Senate  ;  and 
the  chief  -justice  of  the  highest  court  of  the  largest  State  in  the 
Union  has  been  recently  seen  to  resign  his  position  in  order  to 
accept  a  precarious  cabinet  appointment.  These  things  in  the 
earlier  days  of  our  history  would  have  been  incomprehensible. 

It  is  hardly  to  be  doubted  that  the  honor  in  which  all  State 
officials  are  held  has,  within  half  a  century,  diminished  enormously. 
While  it  is  true,  we  cannot  attribute  the  falling  off  to  any  one 
cause,  yet  it  may  perhaps,  in  large  part,  be  ascribed  to  the  dimin- 
ished importance  of  the  State  governments  in  the  affairs  of  the 
people. 


CHAPTER   XIX. 

TENDENCY    OF    POWER    IN    SOME    EUROPEAN    FEDERATIONS. 

A  GLANCE  at  the  history  of  other  federations  furnishes 
additional  illustration  of  the  proposition  already  stated. 
The  great  historical  confederations,  in  the  course  of  time, 
have  either  drawn  the  federal  bond  tighter  and  tighter,  or 
gone  to  pieces,  and  in  their  disconnected  parts  laid  the 
foundations  of  independent  states.  The  most  important 
of  these,  besides  the  United  States,  are  the  Achaian 
League,  the  Swiss  Cantons,  the  United  Provinces,  the 
German  Confederacies,  and  the  German  Empire.  A 
map  representing  the  political  divisions  of  ancient  Greece 
in  the  last  decades  of  its  independent  existence,  would 
show  nearly  the  whole  territory  partitioned  among  a  num- 
ber of  leagues — the  League  of  Achaia,  the  League  of 
Boeotia,  the  League  of  Euboia,  the  League  of  Phokis, 
the  League  of  Akarnania,  the  League  of  Thessaly,  the 
League  of  Magnesia,  the  League  of  Perrhaibia,  and 
the  League  of  Epeiros.  But  of  the  political  history,  or 
even  of  the  governmental  organization,  of  the  minor 
Grecian  leagues,  we  have  only  little  information.  Some 
of  them,  as  for  example  Phokis,  Akarnania,  and  Epeiros, 
had  strictly  federal  governments,  yet  of  the  history  of  all 
of  the  leagues,  with  the  exception  of  Achaia,  we  lack 
data  sufficient  to  determine  whether  the  federal  bond 
in  them  grew  stronger  or  weaker.  The  League  of  Lykia, 
outside  of  the  limits  of  Greece,  possessed  at  one  time  a 


2$4  POLITICS. 

federal  government,  to  which  Montesquieu  has  referred 
as  a  model  of  a  federal  republic ;  but  of  its  origin  and 
internal  development  no  account  has  been  preserved.  It 
is,  therefore,  chiefly  from  Achaia  that  we  must  learn  what- 
ever antiquity  has  to  teach  us  concerning  the  general 
tendency  of  power  in  the  history  of  federal  government. 

Even  before  Macedonia  became  the  dominant  power 
in  Greece,  the  foundations  of  a  federal  government  were 
laid  in  Achaia  by  the  union  of  twelve  democratic  cities. 
Although  no  details  have  been  preserved  of  this  "old 
Achaian  constitution,"  yet  "at  the  same  time/' as  Mr. 
Freeman  suggests,  "  it  is  easy  to  believe  that  the  federal 
tie  may  have  been  much  less  closely  drawn  than  it  was  in 
the  revived  confederation  of  after  times." 

The  new  league  of  Achaia,  beginning  about  280  B.C., 
grew,  from  a  union  of  small  towns,  to  embrace  the  whole 
of  Peloponnesus.  Its  constitution  was  not  a  loose  bond 
of  alliance,  but  the  fundamental  law  of  a  state.  "The 
federal  form  of  government  now  appears  in  its  fullest  and 
purest  shape.  Every  city  remained  a  distinct  State, 
sovereign  for  all  purposes  not  inconsistent  with  the 
higher  sovereignty  of  the  federation,  retaining  its 
local  assemblies  and  local  magistrates,  and  ordering  all 
exclusively  local  affairs  without  any  interference  from 
the  central  power."  *  The  State  was  a  federal  democracy, 
but  without  a  system  of  representation.  The  national 
assembly,  although  any  citizen  of  the  league  was  privi- 
leged to  attend  it,  was  in  practice  composed  of  those 
citizens  "who  were  at  once  wealthy  enough  to  bear  the 
cost  of  the  journey,  and  zealous  enough  to  bear  the 
trouble  of  it."  It  tended,  therefore,  to  become  an  aristo- 
cratic body.  It  had  two  regular  sessions  yearly,  but 
extra  sessions  might  be  called  by  the  executive  branch  of 
*  Freeman,  "  History  of  Federal  Government,"  I.  255. 


EUROPEAN    FEDERATIONS. 


the  government.  The  limitation  of  the  session  of  the 
assembly  to  three  days,  taken  in  connection  with  the  fact 
that  the  initiative  in  legislation  was  always  in  the  hands  of 
the  executive,  gave  to  the  executive  the  preponderance  of 
whatever  power  the  central  government  possessed.  This 
government  consisted  of  ten  ministers,  who  formed  the 
Cabinet  of  the  President,  or  general  of  the  Achaians,  as 
he  was  called.  These  and  the  President  himself  were 
chosen  directly  by  the  Assembly  for  a  specified  time, 
namely,  for  one  year,  and  there  were  no  constitutional 
means  for  removing  them  before  the  expiration  of  their 
term  of  office.  Being  elected  by  the  Assembly,  there 
was  likely  to  be  harmony  of  views  between  the  two 
bodies.  The  Assembly  would  therefore  be  disposed  to 
accept  without  question  the  propositions  of  the  executive, 
and  thus  were  established  conditions  most  favorable  for 
the  encroachment  of  the  central  pow£r  on  the  authority 
of  the  local  governments.  Power  drifted  toward  the 
centre.  One  after  another  the  cities  of  Peloponnesus 
were  drawn  into  the  league,  and  out  of  them  grew  a  sin- 
gle great  nation.  They  were  subjected  to  the  increasing 
power  of  the  national  government,  and  to  the  assimilat- 
ing force  of  the  national  spirit.  "The  tendency  to 
assimilation  among  the  several  cities  was  very  strong.  In 
the  later  days  of  the  League  it  seems  to  have  developed  with 
increased  force,  till  at  last  Polybius  could  say  that  all 
Peloponnesus  differed  from  a  single  city  only  in  not  being 
surrounded  by  a  single  wall.  The  whole  peninsula  em- 
ployed the  same  coinage,  weights  and  measures,  and  was 
governed  by  the  same  laws,  administered  by  the  same 
magistrates,  senators,  and  judges.  *  *  *  The  Achaian 
League  was,  in  German  technical  language,  a  Bundes- 
staat  and  not  a  mere  Staaicnbund*  There  was  an  Achaian 
nation,  with  a  national  assembly,  a  national  government, 


2$6  POLITICS. 

and   national   tribunals,  to  which   every  Achaian  citizen 
owed  a  direct  allegiance/'* 

The  federal  government  grew  strong  at  the  expense  of 
the  local  governments  ;  and  in  the  central  government 
itself,  the  executive  department,  which  possessed  the  in- 
itiative in  legislation,  became  practically  supreme.  The 
national  assembly  retained  its  right  to  appoint  the  mem- 
bers of  the  executive  department,  and  also  to  give  or 
withhold  its  assent  to  legislative  propositions.  "Owing, 
however,  to  the  shortness  of  the  sessions,  which  rendered 
all  discussion  of  these  propositions  impracticable,  the 
participation  of  the  assembly  in  legislation  grew,  in  the 
course  of  time,  to  be  little  more  than  a  mere  formal  act 
of  registering  the  decrees  of  the  president  and  his  min- 
isters. 

A  further  illustration  of  the  same  purport  may  be 
drawn  from  the  political  history  of  Switzerland.  The 
earliest  union  of  cantons  of  which  we  have  documentary 
evidence  was  that  of  1291.  This,  like  the  still  earlier 
union  to  which  tradition  points,  was  simply  a  defensive 
alliance.  It  formed  no  central  state,  nor  deprived  the 
cantons  of  any  of  that  power  which  they  had  hitherto  ex- 
ercised. It  was  a  pledge  of  mutual  protection.  They 
agreed  to  unite  their  efforts  to  resist  ''all  who  should  do 
violence  to  any  of  them,  or  impose  taxes,  or  design  wrong 
to  their  persons  or  goods."  Disputes  arising  between 
them  were  to  be  settled  by  arbitration.  The  three  can- 
tons of  the  original  alliance  were  joined  by  five  others 
early  in  the  fourteenth  century.  The  eight  cantons  thus 
brought  into  union  agreed  to  maintain  peace  among 
themselves,  and  to  join  their  forces  in  defence  against 
their  common  enemies.  In  the  course  of  time  the  several 
cantons  extended  their  dominions,  and  gradually  drew 
*  Freeman,  ''History  of  Federal  Government."  I.  259. 


EUROPEAN    FEDERATION.  257 

together  into  a  closer  union ;  still,  in  the  fifteenth  century 
Switzerland  had  not  advanced  politically  beyond  a  league 
of  cantons  for  mutual  defence.  The  cantons  might  form 
separate  alliances  with  foreign  states,  and  even  make  war 
on  one  another.  In  the  convention  of  Stantz,  however, 
in  1481,  they  agreed  to  lay  aside  this  latter  right  ;  but 
the  agreement  had  only  a  moral  force,  and  was  broken 
by  the  cantons,  as  in  the  period  of  the  Reformation,  as 
soon  as  It  was  found  to  conflict  with  their  individual 
interests  or  aims.  The  nature  of  the  confederation, 
prior  to  the  recent  changes,  is  described  by  May  as  fol- 
lows :  "  Originally  it  was  little  more  than  an  alliance, 
offensive  and  defensive,  between  particular  cantons;  and 
until  recent  times,  the  union  continued  far  too  loose  for 
the  effective  purposes  of  a  confederation.  Its  main  ob- 
jects were  mutual  defence  against  foreign  enemies,  and 
internal  tranquillity.  The  confederation  had  no  powers — 
either  legislative,  executive,  or  administrative — binding 
upon  the  several  cantons  :  no  federal  army  :  no  public 
treasury,  or  national  mint  :  no  coercive  procedure  :  not 
even  a  paramount  authority  to  enter  into  treaties  and  al- 
liances with  foreign  powers — some  of  the  cantons  having 
reserved  to  themselves  the  right  of  forming  separate 
alliances  with  other  states/'*  The  diet  had  no  definitive 
powers  in  legislation,  yet  the  habit  of  deliberating 
together  on  questions  of  common  concern  developed  a 
certain  unity  of  political  sentiment,  which  manifested  itself 
later  in  strengthening  the  national  as  opposed  to  cantonal 
institutions.  A  step  in  this  direction  was  taken  soon 
after  Switzerland  had  gained  a  recognized  position  among 
the  independent  powers  of  Europe  at  the  peace  of  West- 
phalia. It  was  the  establishment  of  the  so-called  "Defen- 
sional."  This  provided  that  the  diet  should  have  power, 
*  "  Democracy  in  Europe,"  I.,  373. 


258  POLITICS. 

in  cases  of  great  danger,  to  call  upon  the  cantons  for 
stipulated  numbers  of  troops  to  defend  the  confederation. 
It  provided  also  for  military  discipline,  for  the  appoint- 
ment of  officers,  and  for  the  general  direction  of  the 
army  by  means  of  a  council  of  war. 

While  the  Swiss  were  thus  slowly  advancing  toward 
national  unity  they  were  overwhelmed  by  the  revolution- 
ary influence  of  France.  Their  independent  political 
growth  was  suddenly  interrupted,  the  old  confederation 
was  swept  away,  and  the  Helvetic  republic,  modeled 
after  the  then  existing  French  republic,  was  set  up  in  its 
place.  The  new  government  was  to  be  based  on  popular 
sovereignty.  It  was  imposed  upon  the  people  by  a 
foreign  power;  it  disregarded  their  ancient  cantonal 
divisions  and  their  ancient  political  traditions,  and  was 
consequently  met  with  vigorous  resistance.  In  1803, 
the  Swiss  accepted  the  Act  of  Mediation  rather  than  suffer 
the  alternative  of  loss  of  independence  under  the  govern- 
ment of  France.  By  it  the  former  cantonal  division  was 
renewed,  and  a  federal  government  established.  This 
remained  in  force  till  the  fall  of  Napoleon.  Then  in  the 
general  political  reorganization  of  Europe,  which  followed 
the  Congress  of  Vienna,  Switzerland  adopted  a  new  con- 
stitution, somewhat  reactionary  in  character,  apparently 
taking  up  the  thread  of  constitutional  growth  where  it 
was  broken  off  by  the  interference  of  the  French. 

The  submission  of  the  Swiss  to  the  federal  govern- 
ment imposed  upon  them  by  the  Act  of  Mediation,  can- 
not but  have  been  influential  in  directing  their  attention 
to  the  benefits  of  a  closer  union  ;  and  the  Constitution 
of  1815  bears  evidence  of  the  progress  of  their  ideas  on 
this  line.  Finally,  in  1848  a  constitution  was  adopted, 
in  which  the  federal  principle  triumphed,  and  in  1874  a 
new  constitution  was.  proposed  essentially  identical  with 


EUROPEAN   FEDERATIONS.  259 

that  of  1848,  but  enlarging  still  farther  the  federal  au- 
thority. This  was  carried  and  became  the  fundamental 
law  of  Switzerland,  by  the  vote  of  fourteen  out  of  the 
twenty- two  cantons,  or  by  a  majority  of  142,000  votes  out 
of  a  total  of  538,000.  We  observe,  then,  throughout  the 
history  of  Switzerland,  the  gradual  development  of  the 
central  power,  justifying  the  statement  of  Mr.  Freeman, 
that  "the  Swiss  confederation — in  its  origin  a  union  of 
the  loosest  kind — has  gradually  drawn  the  federal  bond 
tighter  and  tighter,  till,  within  our  own  times,  it  has 
assumed  a  form  which  fairly  entitles  it  to  rank  beside 
Achaia  and  America."  * 

The  history  of  the  Netherlands  shows  the  union  of 
several  provinces  for  the  purpose  of  achieving  their  inde- 
pendence, and,  moreover,  the  gradual  development  in 
them  of  a  central  power  which  finally  became  hereditary 
and  a  permanent  part  of  the  political  institutions  of  the 
country.  The  government  grew  into  a  monarchy.  This 
result  was  the  outcome  of  the  relation  of  the  provinces  to 
foreign  powers.  The  need  of  resistance,  first  to  the  arbi- 
trary rule  of  Spain,  and  later  to  the  encroachments  of  the 
French,  made  unity  of  action  and  of  organization  an 
essential  condition  of  their  independent  existence.  But 
there  was  in  the  several  provinces,  in  their  early  history, 
a  strong  antagonism  to  any  central  authority.  The 
tendency  of  the  political  development  of  the  provinces 
toward  unity  was  determined,  therefore,  rather  by  their 
peculiar  external  relations  than  by  the  growth  of  any 
strictly  national  spirit. 

The  Holy  Roman  Empire,  during  its  history  as  a  feudal 
institution,  illustrates  the  movement  of  power  in  the  op- 
posite direction.  The  declaration  of  the  electoral  union  at 
Rhens,  in  1338,  that  it  was  by  election  "  that  the  sover- 
*  "  History  of  Federal  Government,"  I.  6. 


260  POLITICS. 

eign  obtained  his  right  to  the  title  of  king  and  emperor, 
and  that  in  consequence  he  did  not  need  to  be  approved 
or  confirmed  by  the  apostolic  chair,"  virtually  marks  the 
separation  of  Germany  and  Italy.  During  the  next  three 
hundred  years  the  provinces  and  states  of  Germany  grew 
into  practically  independent  sovereignties,  and  their  inde- 
pendence was  formally  recognized  by  the  Treaty  of  West- 
phalia, in  1648.  By  this  treaty  they  were  permitted  to 
contract  alliances,  either  among  themselves  or  with 
foreign  States,  and  also  to  make  war,  provided  the  em- 
pire were  not  the  object  of  attack.  But  before  the  end  of 
the  eighteenth  century  this  last  provision  had  come  to 
be  entirely  disregarded,  and  although  the  empire  con- 
tinued to  exist  in  name,  there  had  grown  up  within  its 
borders  a  large  number  of  practically  sovereign  states. 

In  1815,  after  the  empire  had  passed  away  and  Ger- 
many had  been  freed  from  the  dominion  of  Napoleon, 
an  attempt  was  made,  through  the  Federal  Act,  to  bring 
the  several  states  into  union.  The  history  of  the  Ger- 
man confederations  and  the  empire,  since  1815,  illustrates 
to  a  certain  extent  the  political  tendency  we  have  ob- 
served in  the  history  of  other  confederacies.  But  accord- 
ing to  the  Federal  Act  the  members  of  the  confederation 
retained  those  rights  which  they  had  had  confirmed  by 
the  Treaty  of  Westphalia.  They  might  form  alliances 
with  foreign  powers  and  with  one  another,  provided  such 
alliances  were  not  detrimental  to  the  general  interests. 
That  the  union  effected  was  simply  a  loose  confederacy 
may  be  seen  from  the  eleventh  article  of  the  Federal  Act  : 

' '  Every  member  of  the  confederation  promises  to  pro- 
tect all  Germany  as  well  as  each  indi  .dual  confederate 
state  against  every  attack,  and  to  guarantee  mutually  to 
each  other  all  their  possessions  comprised  in  the  con- 
federation. When  war  has  once  been  declared  by  the 


EUROPEAN   FEDERATIONS.  261 

confederation,  no  member  can  enter  on  individual  nego- 
tiations, or  conclude  a  truce  or  peace  individually.  The 
members  of  the  confederation  retain  the  right  of  forming 
any  alliance,  but  bind  themselves  not  to  make  any  engage- 
ment directed  against  the  safety  of  the  confederation,  or 
any  of  its  members.  The  members  of  the  confederation 
engage  not  to  make  war  on  each  other  on  any  pretext 
whatsoever,  nor  to  settle  their  differences  by  force,  but  to 
lay  them  before  the  diet.  It  then  becomes  the  duty  of 
the  latter  to  attempt  a  reconciliation  through  a  com- 
mission, and  in  case  this  attempt  should  fail  and  a 
judicial  decision  become  necessary,  to  bring  this  about 
by  a  properly  instituted  Austragal  Tribunal,  to  whose 
sentence  the  contending  parties  are  bound  instantly  to 
submit." 

In  spite  of  the  great  expectations  that  had  been  enter- 
tained of  the  Congress  of  Vienna,  the  bond  of  German 
union  was  still  very  weak,  and  it  was  clear  that  unless 
the  central  power  was  strengthened  the  confederacy  would 
go  to  pieces.  In  May,  1820,  the  draft  of  the  so-called 
Final  Act  of  Vienna  was  completed  by  representatives  of 
the  several  German  governments,  assembled  at  Vienna. 
This  was  ratified  in  the  following  month  and  became  a 
part  of  the  fundamental  law,  of  equal  authority  with  the 
Federal  Act.  It  described  the  confederation  as  "an  in- 
ternational society  of  the  German  sovereign  princes,  and 
of  the  free  towns,  for  the  preservation  of  the  independ- 
ence and  inviolability  of  the  states  which  compose  the 
confederation,  and  for  the  maintenance  of  the  internal 
and  external  security  of  Germany.  This  union,  with  regard 
to  its  internal  affairs,  is  a  corporation  of  self-dependent 
and,  with  regard  to  each  other,  independent  states,  with 
mutual  treaty  rights  and  obligations ;  and  is,  with  regard 
to  external  affairs,  a  politically  united  power." 


262  POLITICS. 

The  Final  Act  strengthened  somewhat  the  central 
authority,  but  it  failed  to  satisfy  the  growing  desire  for 
national  institutions  ;  in  fact,  there  were  serious  obstacles 
to  bringing  the  German  people  under  a  single  govern- 
ment, even  into  a  single  federal  state ;  and  prominent 
among  these  was  the  existence  of  two  great  rival  states, 
Austria  and  Prussia,  of  practically  equal  powers.  The 
governmental  unity  of  the  German  people  was  im- 
possible without  the  subordination  of  one  of  these 
states  to  the  leadership  of  the  other.  In  their  mutual 
jealousies  lay  the  main  difficulties  of  Germany's  political 
problem.  It  was  in  great  measure  the  embarrassment 
presented  by  the  rivalry  of  these  states  that  negatived  the 
vigorous  attempts  of  1848  and  1849  to  set  up  a  govern- 
ment for  united  Germany,  and  necessitated  a  return,  in 
1851,  to  the  old  order  of  things,  under  the  German  con- 
federation. But  the  co-operation  of  Austria  and  Prussia 
was  now  out  of  the  question.  The  year  1859  brought 
a  change  :  Austria  was  defeated  in  the  Italian  war,  and 
by  this  lost  prestige  as  a  leader  ;  and  at  the  same  time 
the  triumph  of  the  French  made  the  Germans  feel  the 
need  of  union  under  a  more  trustworthy  head.  When  it 
became  evident  that  no  peaceful  solution  of  the  problem 
was  possible,  Prussia  took  the  lead,  broke  with  Austria, 
and  established  the  North  German  Union.  Into  this 
union  all  the  German  States  except  Austria  were  finally 
drawn  and  their  mutual  adherence  confirmed  by  their 
common  participation  in  a  great  victory ;  and  out  of  the 
Union  grew  the  Empire. 

If  we  were  now  to  compare  the  present  imperial  gov- 
ernment with  the  central  government  of  confederate 
Germany  at  any  period  since  the  overthrow  of  the  Holy 
Roman  Empire,  there  would  be  left  no  room  for  doubt 
that  Germany  illustrates  the  political  tendency  already 


EUROPEAN  FEDERATIONS.  263 

observed  in  the  history  of  confederations.  The  central 
government  has  tended  to  become  stronger  and  stronger, 
in  comparison  with  the  power  of  the  subordinate  States  ; 
and  with  this  point  determined,  it  is  a  matter  of  no  great 
moment  in  the  present  inquiry  whether  the  Empire  is  to 
be  regarded,  in  its  present  form,  as  a  Bundesstaat  or 
merely  as  a  Staatenbund. 

Not  only  does  the  history  of  Germany  under  its  con- 
federations show  a  gradual  strengthening  of  the  general 
government,  but  there  are,  moreover,  provisions  of  the 
present  imperial  constitution  which  indicate  the  continu- 
ance of  this  drift  toward  centralization.  In  the  first  place, 
according  to  the  second  article,  the  "  laws  of  the  Empire 
shall  take  precedence  of  those  of  each  individual  State.*' 
In  the  second  place,  in  maintaining  the  constitution  and 
in  making  the  laws,  the  Emperor  has  the  advantage  of 
position.  In  the  Bundesrath  there  are  fifty-eight  votes, 
divided  among  the  states  in  such  a  manner  that  Prussia 
has  seventeen,  Bavaria  six,  Saxony  four,  Wurtemberg  four, 
Baden  three,  Hesse  three,  Mecklenburg-Schwerin  two, 
Brunswick  two,  and  seventeen  smaller  States  one  each. 
It  thus  appears  that  in  the  Bundesrath,  Prussia's  power  is 
superior  to  that  of  any  other  State.  The  union  of  Ger- 
man Emperor  and  Prussian  King  in  one  person  adds  fur- 
ther importance  to  Prussia's  position.  As  King  of  Prus- 
sia he  can  appoint  seventeen  members  of  the  Bundes- 
rath, and  as  Emperor  may  rely  on  them  to  carry  out 
his  will  in  matters  of  imperial  policy.  Now,  since  four- 
teen votes  in  the  Bundesrath  may  negative  "any  proposed 
amendment  to  the  constitution,  the  Emperor  through  his 
control  of. the  seventeen  votes  of  Prussia  may  prevent  any 
change  in  the  constitution,  even  were  such  change  desired 
by  all  the  other  states  in  union.  It  is,  therefore,  impossi- 
ble, without  the  consent  of  the  Emperor,  to  take  away  any 


264  POLITICS. 

of  that  power  which  the  imperial  government  at  present 
exercises.  But  the  history  of  other  confederations  shows 
clearly  that  it  has  hitherto  been  impossible  so  to  balance 
in  them  the  centrifugal  and  centripetal  forces  as  to  place 
the  government  in  equilibrium  between  these  forces.  It 
appears,  then,  that  since  the  power  of  the  central  govern- 
ment cannot  be  lessened  except  by  the  consent  of  him  to 
whom  such  diminution  would  be  a  loss,  it  must  inevita- 
bly grow  stronger.  And,  moreover,  the  extensive  powers 
already  granted  through  the  constitution,  together  with 
the  fact  that  the  initiative  in  legislation  rests  with  the 
Emperor  and  Bundesrath,  indicate  that,  in  the  future,  the 
strictly  constitutional  growth  of  the  Empire  is  likely  to 
result  in  a  still  greater  development  of  the  central  power 
as  compared  with  the  power  of  the  individual  States. 


CHAPTER    XX. 

POLITICAL    PARTIES. 

POLITICAL  parties  necessarily  arise  in  the  nation  with  a 
representative  government.  If  the  power  to  initiate  laws, 
and  also  to  adopt  them,  is  possessed  by  the  same  persons 
and  these  persons  are  elected,  then  two  great  parties  will 
arise ;  and  the  aim  of  each  will  be  to  obtain  and  hold  the 
law-making  power  and,  through  it,  the  executive  power. 
Where,  however,  the  power  to  initiate  legislation  is  in  an 
irremovable  monarch,  and  merely  the  power  of  acceptance 
or  rejection  in  an  elected  assembly,  there  only  fractiona] 
groups,  not  effective  political  parties,  will  exist.* 

Within  the  party,  just  as  within  the  state,  there  is  a  con- 
stant tendency  to  the  lodgment  of  supreme  control  in  one 
person,  and  also  to  rigidity  of  organization.  This  is  met 
by  a  resisting  impulse  or  disposition  on  the  part  of  the 
members  to  be  free,  so  that,  where  there  is  free  movement 
in  political  life,  parties  always  tend  to  an  equilibrium. 

Within  the  great  organic  being,  the  state,  there  is 
continual  movement  as  there  is  within  the  life  of  the  in- 
dividual man.  With  both  the  question  is  constantly  re- 
curring, What  shall  I  do  ?  The  man  listens  to  the  plead- 
ings of  his  feelings,  his  prejudices,  his  experiences,  his  judg- 
ment, and  his  wishes,  decides,  and  then  executes.  When 

*  Interesting  in   the  literature  of  this   subject   is  Bluntschli's 
"Charakter   und    Geist   der   politischen    Parteien,"    Nordlingen, 
1869.     This  treatise  was  later  embodied  in  "  Lehre  vom  modernen 
Stat."  constituting  the  twelfth  book  of  the  third  volume. 
12 


266  POLITICS. 

life  is  at  its  prime  these  debates  with  self  rage  frequently 
and  fiercely,  and  often  his  whole  being  is  endangered  by 
them  ;  but  as  life  declines  they  become  less  frequent  ; 
the  needed  decision  is  postponed,  that  repose  may  not  be 
disturbed,  and  the  tyranny  of  daily  habit  at  last  usurps 
the  enfeebled  will. 

Within  the  state  the  answer  to  a  similar  question  is 
also  constantly  demanded.  In  the  free  state  the  debate 
is  by  political  parties.  The  feelings,  the  judgment,  the 
experiences,  and  the  prejudices  of  the  community  find 
expression  through  them  ;  and  at  last  the  decision  is  by 
that  organ  in  the  state  which  makes  the  law.  In  the 
vigorous  state  the  pleadings  of  political  parties  will  be 
vehement,  often  passionate ;  it  is  only  when  the  fatal 
lethargy  of  corruption  creeps  over  the  nation  that  parties 
disappear  and  despotism  reigns. 

Without  parties  the  currents  of  political  life  would  be- 
come stagnant,  and  free  government  would  cease  to  exist. 
But  what  is  a  political  party  ?  How  does  it  come  into 
being  ?  and  what  are  its  aims  ?  In  order  to  answer  these 
queries  we  must  recur  again,  at  the  outset,  to  the  funda- 
mental principle  so  frequently  referred  to,  that  the  will 
power  in  every  state — that  is,  the  right  to  make  effective 
commands  and  to  use  the  physical  forces  of  the  state  to 
enforce  them — is  always  lodged  in  one  person  or  in  a  body 
of  persons.  Now  if  the  whole  of  this  will-power,  or  any 
part  of  it,  is  exercised  by  a  person  or  a  body  of  persons 
who  are  representatives  of  other  and  larger  numbers  of 
persons,  in  short,  if  any  part  of  the  government  is  repre- 
sentative, then  political  parties  will  arise  among  those 
who  have  the  right  to  be  represented.  Th  s  will  be  the 
case  both  in  those  states  in  which  the  will-power  is  di- 
vided into  two  parts,  as  in  Germany,  where  the  monarch 
proposes  the  law  and  parliament  accepts  or  rejects  it,  and 


POLITICAL  PARTIES.  267 

in  those  other  states  in  which  the  will-power  is  practically 
centralized  in  the  legislative  body,  as  in  Great  Britain,  or 
is  distributed,  as  in  the  United  States,  in  the  President 
and  the  two  houses  of  Congress. 

Wherever  we  find  that  any  portion  of  what  has  been 
termed  the  ultimate  sovereignty  is  in  the  people,  or  in 
any  considerable  number  of  them,  we  may  be  sure  that 
political  parties  will  come  into  existence.  And  if  these 
conditions  exist  either  in  the  whole  of  the  state  or  only  in 
some  subordinate  circles  of  administration,  the  same  re- 
sults follow.  The  will-power  concerning  the  general 
affairs  of  a  nation  may  be  vested  in  a  single  person — in 
such  case  we  need  not  look  for  national  political  parties. 
But  this  single  ruler  may  grant  self-government  to  a  sub- 
division of  his  empire,  as  to  a  city  or  a  commune  ;  in 
which  case  political  parties  will  come  into  being  in  such 
subdivision.  The  aim  of  the  political  party  is  to  obtain 
and  hold  possession  of  that  organ  in  the  state  which  ex- 
presses the  will  of  the  state,  as  well  as  those  organs 
through  which  the  force  of  the  state  is  exercised.  When 
successful  in  these  points  it  has  accomplished  the  end  of 
its  existence.  Whether  it  uses  its  power  for  good  or  bad 
purposes  does  not  concern  the  aim  which  the  party  has  in 
view  when  it  organizes  and  strives  for  victory,  namely, 
the  possession  of  the  government. 

In  a  narrow  sense  political  parties  exist  under  all  forms 
of  government.  If  the  monarch  is  even  an  absolute  des- 
pot there  will  be  combinations  of  persons  about  him 
seeking  to  control  his  political  action,  and  to  mold  the 
will  of  the  state  through  him.  These,  however,  are 
merely  court  factions  ;  or  even  if  a  large  fraction  of  the 
people  combine  together  to  persuade,  or  influence,  or  op- 
pose this  absolute  monarch,  the  combination  lacks  the 
true  elements  of  a  political  party,  because  it  cannot 


268  POLITICS. 

possess  the  instrument  of  power.  In  the  despotism  scch 
combinations  usually  take  a  revolutionary  attitude  ;  their 
effort  is  not  so  much  to  possess  as  to  destroy  the  existing 
government.  Properly  speaking,  such  a  combination  is 
not  a  political  party ;  it  is  rather  a  revolutionary  party, 
and  is  without  the  range  of  inquiry  when  we  are  investi- 
gating the  normal  action  of  political  systems,  for  revolu- 
tion is  without  the  sphere  of  normal  political  growth  and 
action. 

When  the  government  is  working  normally,  and  the 
reserve  force  of  the  nation  has  shifted  over  to  a  sufficiently 
large  body  of  its  members  to  render  combinations  on  a 
large  scale  effective  in  securing  the  control  of  this  force, 
or,  as  stated  above,  effective  in  obtaining  possession  of  the 
organs  of  will  and  force  in  the  government,  then  a  true 
political  party  comes  into  the  field. 

A  political  party  may  be  defined  to  be  an  association 
of  subjects  or  citizens  in  a  state,  entertaining  common 
views,  or  having  similar  opinions  as  to  a  given  subject 
within  the  scope  of  state  action,  who  have  joined  them- 
selves together  for  the  purpose  of  exercising  the  combined 
power  of  the  state  to  accomplish  the  desired  object ;  in 
other  words,  to  control  and  wield  the  will  and  force  of 
the  state.  The  members  of  the  party  must  necessarily, 
therefore,  be  confined  to  those  in  whom  reposes  some 
part  of  the  political  force  inherent  in  the  particular  com- 
munity. In  this  view,  then,  it  follows  that  all  persons 
who  do  not  have  a  potential  voice  in  public  affairs  can- 
not with  propriety  be  said  to  belong  to  a  political  party, 
however  much  their  sympathies  and  efforts  may  go 
with  it.  For  instance,  under  the  systems  generally  pre- 
vailing in  the  several  states,  women,  children  and  aliens 
are  in  the  category  of  exclusion.  The  essential  attribute 
of  a  member  of  a  party  is,  that  he  must  hold  somewhat 


POLITICAL  PARTIES.  269 

of  that  political  force  which  is  inherent  in  the  community 
of  which  he  is  a  part.  The  voters  are  those  who  consti- 
tute the  party,  and  the  party  which  has  possession  of  the 
government  is  really,  for  the  time  being,  the  ultimate 
sovereign  in  the  state. 

How  is  the  party  formed  ?  What  are  its  processes  of 
growth  ?  Like  the  state,  the  party  is  founded  in  the 
essential  attributes  of  human  nature.  Its  growth  pro- 
ceeds from  the  interaction  of  the  love  of  domination 
and  its  antithesis,  the  disposition  to  be  free.  It  is  pos- 
sible to  imagine  that  all  the  inhabitants  of  a  country 
may  agree  upon  all  the  lines  of  policy  to  be  pursued,  and 
thus  decide  without  dissent  upon  the  laws  to  be  made ; 
but  taking  men  as  they  are,  and  as  they  always  have 
been,  this  Arcadian  unanimity  may  be  looked  for  only  in 
the  realm  of  imagination.  While  the  great  diversity  of 
intelligence,  of  culture,  of  passions,  desires,  and  inter- 
ests continue,  so  long  will  men  be  divided  on  all  ques- 
tions which  can  come  within  the  purview  of  govern- 
mental action,  and  so  long  as  there  are  two  opinions  on 
any  political  question,  there  is  at  hand  the  nucleus  of  two 
political  parties. 

A  body  of  voters  actuated  by  common  interests,  or  by 
the  same  opinions,  and  a  common  desire  to  control  the 
will  and  force  of  the  state  in  order  to  carry  out  their  par- 
ticular views,  if  few  in  number,  seek  in  the  first  instance 
to  dominate  the  minds  of  a  sufficient  number  of  other 
voters  to  obtain  a  numerical  majority,  and  thus  to  be  in 
a  position  to  seize  the  central  power.  Common  con- 
ditions in  the  administrative  or  social  affairs  of  the  whole 
country  will  often  produce  what  appears  to  be  a  spontane- 
ous community  of  desires  and  opinions  in  a  large  number 
of  voters.  These  desires  and  opinions  lie  in  many  minds 
perhaps  unexpressed,  or  only  half  expressed,  but  finally 


270  POLITICS. 

are  voiced  and  directed  to  action  by  a  leader.  Often  a 
very  small  band  of  men  hammer  away  at  a  reluctant  com- 
munity until  they  communicate  to  it  the  heat  that  glows 
in  themselves,  thus  forming  a  political  party  actuated  by 
their  desires  and  opinions. 

Whatever  may  be  the  precise  cause  of  this  integration 
of  men  with  common  desires  and  opinions,  it  is  clear 
that  if  their  objects  are  obtainable  through  governmental 
action,  and  they  are  sufficiently  numerous  to  hope  for 
success,  they  will  combine  to  accomplish  their  objects. 

Why  men  join  this  party  or  that,  depends  upon  a  great 
variety  of  circumstances.  By  some  it  is  supposed  there 
is  a  tendency  in  nations  enjoying  political  liberty  to 
divide  into  conservative  and  radical  parties.  Macaulay 
speaks  of  the  distinction  between  the  two  great  parties 
which,  in  England,  have  alternately  held  power  since  the 
time  of  the  Long  Parliament,  as  one  likely  always  to  exist ; 
"  for,"  as  he  says,  ' '  it  had  its  origin  in  diversities  of  tem- 
per, of  understanding,  and  of  interest,  which  are  found  in 
all  societies,  and  which  will  be  found  till  the  human  mind 
ceases  to  be  drawn  in  opposite  directions  by  the  charm  of 
habit  and  the  charm  of  novelty." 

Others  have  advanced  the  theory  that  youth  and  those 
who,  though  of  advanced  years,  have  still  the  temperament 
of  youth,  will  combine  together  in  a  party  of  progress  ; 
and  those  who  have  the  caution  of  age,  whether  young  or 
old,  will  fall  into  the  opposite  party  of  resistance  to 
change.*  Both  these  views  are  fanciful.  Men  act  with 
political  parties  because  of  the  most  diverse  causes,  but 
seldom  by  reason  of  temperament  alone.  A  few  go  with 
a  particular  party,  because  they  reason  on  broad  general 

*  This  theory  and  other  theories  concerning  political  parties 
are  discussed  in  "  Friedrich  Romer's  Lehre  von  den  Politischen 
Parteien,"  durch  Theodor  Rohmer.  Zurich,  1844. 


^  OF 

POLITICAL  PARTIES  ° 


grounds  with  reference  to  its  aims.  Some,  because  their 
supposed  interests  lie  with  the  party  ;  but  the  mass 
through  the  influence  of  association,  neighborhood,  family, 
or  of  their  calling  in  life.  Mere  association,  rather  than 
original  thought  or  temperament,  keeps  the  greater  num- 
ber in  a  party  which  is  established.  Why  ig  it  that  the 
majority  in  one  village  will  be  with  one  party  and  the 
majority  in  the  next  village  will  be  with  the  other  party  ? 
Or,  why  is  it  so  often  the  case  that  the  political  views  of 
the  father  will  be  taken  up  by  the  sons  successively  as 
they  become  old  enough  to  feel  an  interest  in  them,  if  it 
is  not  that  the  social  environment  is  the  determinant  ? 

When  the  party  is  established,  that  is,  has  sufficient 
numbers  and  coherence  to  aim  distinctly  at  the  possession 
of  the  government,  then  a  process  of  development  mani- 
fests itself  within  the  party  analogous  to  that  within  the 
state.  Leadership  is  evolved,  which  is  the  equivalent  of 
sovereignty.  This  is  but  natural,  and,  we  may  say,  en- 
tirely human.  At  some  point  within  the  party,  supreme 
power  will  be  lodged  either  in  one  person  or  in  a  small 
body  of  persons.  In  political  integration  and  evolution, 
there  is  a  constant  gravitation  toward  the  despotism  of 
one,  or  of  a  few.  At  the  same  time,  its  antithesis,  the  re- 
sisting instinct  which  impels  men  to  be  and  remain  free, 
is  excited  ;  and  where  the  two  activities  are  nearly  equally 
balanced  in  the  community,  we  have  the  conditions  of  a 
vigorous,  stable,  free  state. 

In  its  earlier  days,  and  while  the  new  party  is  in  the 
minority,  the  leaders  are  those  who  take  their  position 
through  their  greater  ability  or  zeal  in  the  cause,  because 
new  parties  generally  attract,  in  the  first  place,  men  of 
ideas,  though  sometimes,  it  is  true,  they  only  draw  those 
of  strong  and  similar  prejudices.  Nevertheless  the  forma- 
tion of  a  new  party  upon  any  basis,  however  narrow,  im- 


2/2  POLITICS. 

plies  the  breaking  up  of  old  combinations,  and  affirma- 
tive, original  action. 

Let  this  new  party  be  successful  in  obtaining  power, 
and  then  there  is  developed  a  rapid  tendency  to  the  dom- 
ination of  not  merely  one,  or  a  few  individuals,  but  a  dom- 
ination of  principles  and  forms,  or  what  is  termed  "or- 
ganization. "  Even  if  the  party  suffers  defeat,  and  it  is 
not  dissolved,  the  organization  retains  its  despotic  rigidity. 
The  party  develops  a  self-consciousness,  a  spirit,  which 
becomes  more  arbitrary  and  aggressive  the  longer  the 
party  exists.  The  most  remarkable  illustration  of  these 
various  tendencies  is  seen  in  the  history  of  the  Roman 
Catholic  Church.  Looking  at  the  Church  simply  as  a 
combination  of  persons,  whose  object  it  has  been  and  is 
to  induce  mankind  to  lead  holy  lives,  to  believe  in  cer- 
tain doctrines,  and  to  earn  a  happy  immortality,  we  are 
struck  with  the  completely  human  way,  so  to  speak,  in 
which,  through  the  centuries  has  been  evolved  and  elab- 
orated a  most  comprehensive  and  rigid  organism,  which 
has  at  last  been  able,  in  the  dogma  of  infallibility,  to  fur- 
nish the  most  extreme  instance  of  intellectual  and  spir- 
itual despotism  that  can  be  conceived  on  earth. 

It  has  required  fifteen  hundred  years  of  historical  de- 
velopment, full  of  strange  events  and  wonderful  vicissi- 
tudes, to  accomplish  this  end.  The  point  which  attracts 
attention  is,  that  human  nature  itself  is  so  constituted 
as  to  make  results  analogous  to  this  the  inevitable 
outcome  of  combinations  of  men,  if  long  enough  con- 
tinued. 

Possibly  the  reason  why  combinations  with  religious 
aims  can  continue  longer  to  develop  in  organization,  is, 
because  their  claims  extend  into  the  intangible  regions  of 
faith,  and,  therefore,  cannot  be  subjected  to  those  visible 
tests  of  fitness  which  are  applied  to  all  working  social 


POLITICAL   PARTIES.  273 

and  governmental  schemes.  A  political  party  proposing 
a  plan  for  the  temporal  betterment  of  the  people  of  a 
state  is,  immediately  it  comes  into  power,  put  upon 
trial,  and  if  its  scheme  is  unsuited  to  the  people  or  the 
times,  the  failure  is  soon  discovered,  and  the  party  falls 
into  disfavor  ;  but  to  the  claims  of  a  religious  sect  no 
such  gauge  can  be  applied.  New  parties  are  formed  by 
the  men  in  whom  the  resisting  element  predominates. 
These  men  are  generally  active  and  pugnacious;  they 
have,  or  think  they  have,  new  ideas,  better  plans,  for  the 
amelioration  of  some  evil  ;  they  combine,  they  agitate, 
mold  public  opinion,  and  finally  succeed.  As  the 
party  enlarges,  it  embraces  more  and  more  of  those  who 
are  influenced  by  mere  family  or  neighborhood  or  social 
influences,  and  by  the  strong  disposition  to  imitate  the 
leading  type.  Let  two  parties  live  side  by  side  for  twenty 
years,  and  a  whole  generation  of  voters  has  grown  up, 
and  the  greater  part  of  these  will  be  of  one  party  or  the 
other  because  of  their  environment. 

The  influences  within  the  party,  as  it  grows  older,  set- 
tling steadily  toward  dogmatism  and  despotism,  tend  to 
drive  off  into  opposition,  or  to  the  formation  of  a  new 
party,  those  in  whom  the  resisting  quality  is  most  active. 
It  is  for  this  reason  that  we  sometimes  see  the  leaders  in 
the  creation  of  a  new  party  afterward  becoming  enemies 
of  its  organization.  Then  again  the  general  public,  form- 
ing the  loose  outskirts  of  parties,  become  surfeited  with 
the  ideas  and  measures  of  a  party,  and  there  is  a  tem- 
porary reaction,  and  afterward  reflux.  This  has  been  re- 
peatedly seen  in .  our  political  history.  Very  often,  the 
Congressional  elections,  after,  a  heated  presidential  con- 
test, will  show  a  vibration  over  to  the  side  opposite  to  the 
administration,  and  then  at  the  next  presidential  election 
a  full  return  of  party  strength.  This  is  often  seen  in 


2/4  POLITICS. 

England  also,  where    liberals  and  tories  go  in  and   out 
of  power,  in  a  sort  of  see-saw  way. 

We  thus  reach  the  point  at  which  we  may  safely  formu- 
late the  proposition  that  in  a  free  state,  political  parties 
are  constantly  tending  to  an  equilibrium.  No  matter 
what  the  principles  may  be,  whether  embracing  all  that 
is  most  favorable  to  the  growth  of  the  highest  civilization, 
or  counseling  a  stationary,  or  ultra-conservative  policy, 
the  parties  which  support  either  class  of  measures  will 
expand,  or  contract  with  almost  regular  alternations,  now 
supported  by  enthusiastic  majorities,  now  dwindling  away 
to  weak  minorities.  This  view  by  no  means  imparts  the 
belief  that  political  movements  must  necessarily  go  around 
in  a  circle ;  on  the  contrary,  there  may  be  continuously  a 
slow  advance,  but  the  currents  will  at  times  rush  head- 
long over  rocks  and  boulders,  and  then  in  a  little  while 
spread  out  into  quiet  eddies,  and  apparently  even  flow 
backwards. 

The  political  party  generates  within  its  bosom  the 
faction  which  is  a  combination  of  those  who  seek  to 
control  the  supreme  power  within  the  party ;  so  that 
factions  are  parties,  and  the  law  of  their  origin,  growth, 
success,  and  defeat  is  the  same  as  that  of  parties  them- 
selves. 

There  is  the  same  tendency  in  parties  as  in  all  bodies  of 
men  acting  in  a  corporate  capacity,  whether  departments 
of  government,  or  associations  for  spiritual  or  political  or 
business  aims,  to  enlarge  the  area  of  their  determination. 
This  is  curiously  illustrated  in  our  own  history.  The  great 
line  of  division  in  our  politics  from  the  first  term  of  Wash- 
ington down  to  the  breaking  out  of  the  civil  war,  and  in  a 
less  degree  to  the  present  time,  was  between  strict  construc- 
tionists  and  liberal  constructionists.  In  the  view  of  one, 
no  legislation  could  be  had  by  Congress  which  did  not  find 


POLITICAL   PARTIES.  275 

its  support  in  the  very  words  of  the  Constitution,  or  which 
was  not  indispensably  necessary  to  carry  out  its  express 
grants  ;  in  the  view  of  the  other,  Congress  has  all  the 
general  powers  which  are  necessary  to  execute  the  specific 
grants  of  the  Constitution,  and  can  exercise  its  own  judg- 
ment, and  very  liberally  too,  as  to  what  laws  "shall  be 
necessary  and  proper  for  carrying  into  execution  the  fore- 
going powers/'  and  also  as  to  what  may  be  best  "to  form 
a  more  perfect  union,  establish  justice,"  etc.,  and  es- 
pecially "to  promote  the  general  welfare."  At  the 
session  of  Congress  in  1790,  Hamilton,  as  part  of  his 
general  financial  scheme,  proposed  the  establishment  of  a 
National  Bank.  Jefferson  opposed  it  in  the  cabinet  as 
unconstitutional.  Washington  called  for  the  written 
opinions  of  these  leaders  of  the  two  new  parties  which 
were  then  in  course  of  consolidation,  the  Federalists  and 
Anti-Federalists,  or  Republicans.  The  difference  in  this, 
as  in  nearly  every  subsequent  case  of  dispute,  turned  upon, 
whether  the  object  was  necessary,  or  whether  it  was  only 
convenient.  But  beneath  the  apparent  narrowness  of  the 
issue,  there  was  really  involved  the  significant  question 
of  centralization  or  State  autonomy — whether  a  national 
government  should  grow  at  the  expense  of  that  of  the 
States,  or  not.  The  rising  democracy  adopted  the  strict 
constructionist  view  of  Jefferson.  He  and  his  followers 
firmly  believed  that  there  was  a  party  which  was  aiming 
to  introduce  monarchy,  and  they  looked  upon  Hamilton 
as  one  of  its  leaders.  It  is  evident  that  most  of  the  prom- 
inent men  of  the  Federal  party  distrusted  the  capacity  of 
the  people  to  carry  on  government ;  but  there  is  no  evi- 
dence of  any  design  on  their  part  to  change  the  form  of  the 
government.  It  must  be  borne  in  mind  that  this  was  in 
Europe  a  transition  period.  The  Revolution,  then  under 
full  headway  in  France,  had  already  caused  a  strong  re- 


2/6  POLITICS. 

action  in  the  opinions  of  social  and  political  leaders  in  the 
other  countries  of  Europe  towards  absolutism,  and  these 
opinions  were  reflected  in  this  country  in  a  marked  distrust, 
by  the  leading  Federalists,  of  the  capacity  of  the  people  for 
self-government.  On  the  other  hand,  the  democracy  were 
stimulated  to  enthusiasm  by  French  ideas,  and  fearing 
a  concentration  of  power  in  the  central  government, 
adopted  the  strict  construction  tenets  in  order  to  avoid 
centralization.  They  came  into  power  in  1801,  with 
Jefferson.  But  how  was  it  then  ?  Whatever  their  ab- 
stract views  of  the  Constitution,  the  Jeffersonian  demo- 
crats obeyed  the  inevitable  impulse  of  a  party  in  command 
of  the  government  to  stretch  its  authority.  In  1803, 
France  offered  Louisiana  for  sale,  and  Jefferson  bought 
it  for  the  United  States.  He  and  his  party  conceded  that 
there  was  no  direct  warrant  in  the  Constitution  for  such 
a  purchase.  They  were  driven  to  shelter  themselves 
under  the  treaty-making  power,  a  clear  evasion  of  their 
principles.  Jefferson,  in  a  letter  to  Lincoln,  of  August 
30,  1803,*  writes  :  "  The  less  that  is  said  about  any  con- 
stitutional  difficulty  the  better  "  ;  and  a  few  days  later,  in 
a  letter  to  Nicholas,  he  enlarges  on  the  necessity  of  a  vig- 
orous construction  of  the  Constitution,  affirming  that  the 
treaty-making  power  should  not  be  too  broadly  construed, 
but  he  urges  that  the  treaty  concerning  the  purchase  of 
Louisiana  be  ratified  without  too  much  debate,  and  to 
prevent  the  treaty  being  quoted  as  an  example  of  broad 
construction,  that  an  appeal  should  be  made  to  the  peo- 
ple for  new  powers  in  a  constitutional  amendment.  This 
was  but  a  repetition  of  the  defence  of  a  higher  necessity  ; 
a  defence  often  made  by  other  governments  when  they 
violate  their  constitutions,  and  then  ask  for  indemnity. 
Again,  another  instance  of  the  disposition  to  sacrifice  ab- 
*  Works,  IV.  p.  505. 


POLITICAL  PARTIES.  277 

stract  principle  to  power  is  found  in  the  establishment  of 
the  embargo  in  1807.  In  answer  to  the  bitter  opposition 
of  the  Federalists,  the  Jeifersonian  party  pointed  to  the 
preamble  of  the  Constitution  as  the  source  of  the  power — 
a  method  of  interpretation  which  that  party  had  always 
rejected  with  pronounced  asperity.  Afterwards,  at  the 
close  of  the  war  with  England,  Calhoun  brought  in  a  bill 
for  a  national  bank,  and  in  its  support  the  members  of 
Congress  of  the  strict  construction  party  quoted  from  the 
report  of  Hamilton  to  Washington  in  favor  of  such  a  bank, 
and  Madison  approved  the  bill,  although  in  1799  in  his 
report  on  the  Virginia  Resolutions  of  1798,  he  had  ad- 
duced the  establishment  of  a  national  bank  as  a  promi- 
nent instance  of  the  usurping  tendencies  of  the  Federal 
government.  So,  with  the  questions  of  internal  improve- 
ments and  the  tariif,  the  constitutional  gauge  was  applied 
to  them,  broad  or  narrow,  very  much  as  the  party  in 
power  found  it  best  suited  their  interests.  When  it  be- 
came the  interest  of  the  democratic  party  to  acquire  Texas, 
a  foreign  state,  it  was  found  constitutional  to  do  so  by 
joint  resolution.  And,  when  the  Civil  War  came  on,  the 
"war  power"  was  stretched  by  the  dominant  party  to 
cover  whatever  it  found  necessary  and  convenient  to  do 
to  carry  out  the  policy  it  had  in  view.  In  thus  push- 
ing its  tentacles  as  far  out  as  possible,  a  political  party 
is  only  following  the  law  of  its  being.  The  struggle, 
which  is  perpetually  going  on  under  one  form  or  another 
in  social  life,  is  only  more  visible  in  great  party  contests 
than  in  the  private  affairs  of  men. 

As  all  government,  in  the  last  analysis,  rests  on  a  basis 
of  physical  force,  so  in  their  degree  do  all  political  par- 
ties. The  vote  at  the  ballot-box  is  a  display  of  forces. 
The  implication,  which  the  defeated  party  accepts  with- 
out further  proof,  is,  that  the  dominant  party  is  prepared 


2/8  POLITICS. 

by  force  of  arms  to  maintain  its  supremacy.  Long  ex- 
perience teaches  a  self-governing  people,  as  already  sug- 
gested, that  it  is  cheaper,  more  comfortable,  hence,  better, 
in  the  long  run,  merely  to  show  their  forces  in  battle  ar- 
ray, than  to  fight  out  political  controversy  to  a  bloody 
issue.  All  the  debate  and  uproar  before  the  election  is 
to  get  recruits  for  the  different  sides  from  among  the 
wavering  or  indifferent.  The  best  argument  for  frequent 
elections  in  a  republic  is  the  training  of  the  combative 
energies,  which  is  thus  given  in  the  direction  of  blood- 
less strife,  a  result  largely  due  k  the  knowledge  that  the 
defeat  of  to-day  may,  in  a  very  little  time,  be  repaired  by 
the  suffering  party. 

An  inquiry  very  naturally  suggests  itself  with  reference 
to  the  development  of  political  parties  during  this  cent- 
ury. Why  is  it  that  in  the  United  States  and  Great 
Britain  we  usually  find  only  two  great  parties,  while  in 
Continental  countries  those  enjoying  political  rights  are 
split  up  into  many  factions  ?  It  will  be  found  that  where 
the  power  of  initiating  legislation,  and  the  power  of 
finally  passing  it  are  united  in  the  same  organ  of  govern- 
ment, as  a  parliament  or  congress,  there  the  tendency  is 
toward  two  parties,  and  that  where  the  proposing  power 
in  legislation  is  vested  in  one  organ  of  the  government, 
as  an  emperor,  or  king,  or  royal  council,  and  only  the 
power  to  accept  or  reject  is  in  the  representative  or  par- 
liamentary body,  there  the  tendency  is  toward  a  number 
of  factions  called  parties. 

A  political  party,  at  bottom,  is  not  an  association  of 
voters  of  like  views  merely  to  engage  in  friendly  debate 
with  those  entertaining  different  opinions.  Persuasion, 
it  is  true,  is  one,  and  perhaps  the  chief  one,  of  its  meth- 
ods to  achieve  success.  Its  objective  point  must  always 
be  the  possession  of  the  organ  in  the  government  which 


POLITICAL   PARTIES.  279 

expresses  the  will  and  uses  the  force  of  the  state.  If  by 
a  union  of  all  those  who  desire  to  accomplish  the  same 
ends  through  the  use  of  state  power,  this  organ  can  be 
taken  possession  of  and  held,  then  the  political  party,  as 
already  suggested,  has  accomplished  the  end  of  its  being. 
It  is  essential  that  it  shall  propose  to  do  something  with 
the  instrumentalities  of  administration.  The  work  of 
government  is  always  to  be  done,  and  while,  of  course,  it 
is  not  by  any  means  necessary  that  governing  depart- 
ments shall  always  be  doing  something  new,  still  there 
must  be  somebody  who  can  propose  and  decide  what 
ought  to  be  done  when  occasion  arises. 

Now,  if  a  political  party  can  acquire  the  control  of  the 
government,  so  as  both  to  propose  in  legislation,  and 
pass  and  make  effective  in  laws,  such  lines  of  policy  as  it 
may  adopt,  it  concentrates  on  its  side  all  who  are  in  favor 
of  its  measures,  in  addition  to  those  who  naturally  go 
with  the  government,  and  it  draws  together  all  who  are 
in  opposition  on  the  other  side.  But,  perhaps,  a  stronger 
b'as  is  given  to  the  concentration  of  the  voters  in  two 
camps,  because  naturally  the  party  seeking  control  of  the 
government  must  announce  in  advance  what  it  proposes 
to  do,  and  thus  the  simple  alternative,  affirmative  or  nega- 
tive, is  presented  to  the  voter.  At  almost  all  elections  in- 
volving questions  of  policy,  there  is  usually  but  one  gen- 
eral proposition  at  stake,  however  many  side-issues  may 
be  tacked  to  it,  and  the  voters  in  substance  say  yes  or  no, 
upon  some  one  point  in  controversy. 

Whatever  may  be  the  occult  reason,  we  see  that  in 
Great  Britain  and  in  the  United  States,  where,  for  a  long 
time,  government  has  been  by  party,  the  voters  range  them- 
selves almost  always  on  two  sides  only,  and  we  also  see 
the  third  parties,  which  from  time  to  time  do  appear,  are 
always  squeezed  out  between  the  two  greater  organizations. 


280  POLITICS. 

In  those  Continental  countries  where  the  monarch  pro- 
poses the  laws,  and  the  parliamentary  body  merely  accepts 
or  rejects  them,  there  is  no  genuine  party  life.  There 
are  groups,  but  not  parties.  The  reason  is,  that  no  com- 
bination can  have  a  constructive  policy,  with  a  chance  of 
success  ;  it  must  stand  by  and  await  the  action  of  the 
government,  an  attitude  paralyzing  to  a  political  party, 
because  its  vigor  depends  upon  its  having  affirmative,  not 
mere  negative  power. 

Bearing  this  distinction  in  mind,  we  can  understand 
the  attitude  of  the  Continental  mind,  which  is  often  inex- 
plicable to  the  American,  the  attitude  in  which  the  govern- 
ment is  always  looked  upon  as  a  party.  There  may  be  the 
right,  the  left,  and  the  centre,  but  there  is  always  the  gov- 
ernment besides,  and  the  position  of  these  parties  is  deter- 
mined by  their  support  or  opposition  to  the  government. 
In  the  Reichstag  of  the  new  German  Empire,  there  were 
said  to  have  been,  in  1880,  nine  groups  called  parties: 
the  Conservatives,  Imperialists,  National  Liberals,  Pro- 
gressionists, Ultramontanes,  Social  Democrats,  and  others. 
As  we  have  seen,  all  legislation  must  be  proposed  by  the 
emperor  through  the  Bundesrath,  and  as  this  power  is  un- 
attainable by  any  combination  of  votes,  all  that  any  party 
can  do  is  to  aid  or  resist  the  government.  The  necessary 
result  is,  that  the  government  is  the  principal  factor,  and 
its  efforts  are  to  cajole  and  attach  a  sufficient  number  of 
these  minor  groups  to  its  policy  for  the  moment,  in  order 
to  carry  its  measures.  These  groups  shift  about,  change, 
and  amalgamate  as  the  government  shifts  or  changes. 

During  the  time  of  Napoleon  III.,  the  French  Con- 
stitution confided  to  the  emperor  the  sole  power  of  in- 
itiating the  laws,  and  the  same  spectacle  of  many  groups, 
the  right,  the  right  centre,  the  centre,  the  left  centre,  the 
left,  the  extreme  left,  and  perhaps  others,  was  presented. 


POLITICAL   PARTIES.  28 1 

All  lacked  the  power  of  cohesion  which  springs  from  the 
possibility  of  capturing  and  entering  the  citadel  which 
commands  the  sources  of  creative  legislation. 

And  in  confirmation  of  this  view,  we  see  that  since  the 
advent  of  the  republic,  and  since  the  vesting  of  initiative 
power  in  the  legislative  body,  the  minor  groups  are  ab- 
sorbed into  two  great  parties,  one  in  possession  of  the 
government,  and  one  in  opposition,  though  it  is  true,  the 
opposition  is  subdivided  upon  dynastic  questions,  but 
these  base  their  foundations  in  causes  which  go  to  the 
very  existence  of  the  government  itself,  and  are  abnormal 
in  their  nature,  because,  as  already  suggested,  the  politic- 
al system  of  a  country  cannot  be  said  to  be  in  a  normal 
condition  so  long  as  any  considerable  party  seeks  to  over- 
throw the  government  itself.  In  a  country  where  it  is  al- 
ways possible  for  a  political  party  finally  to  control  the 
state  power  there  is  always  present  the  incentive  for  com- 
bination, argument,  persuasion,  and  all  the  arts  which 
train  men  in  the  practice  of  government,  and  also  a  stim- 
ulus, it  is  true,  to  aim  at  the  possession  of  state  instru- 
mentalities for  the  mere  profit  that  is  in  them. 

But  there  is  still  a  difference  to  be  noted  in  the  devel- 
opment of  parties  in  the  United  States  and  Great  Britain, 
and  in  the  ways  in  which  they  act.  A  party  in  the  latter 
consists  of  a  leader  or  leaders,  and  a  large  indeterminate 
number  of  voters  following  them.  The  voters  of  the 
party  elect  members  to  parliament,  and  if  these  are  in 
the  majority  in  that  body,  they  choose,  or  rather,  by  tacit 
consent,  they  permit  the  leaders  to  go  into  the  cabinet, 
which,  as  has  been  well  said,  is  a  committee  chosen  from 
the  majority  in  the  House  of  Commons. 

Theoretically,  any  member  of  parliament  may,  on  leave 
being  given,  introduce  a  bill  for  the  purpose  of  turning 
any  measure  he  may  choose  into  a  law  ;  practically,  how- 


282  POLITICS. 

ever,  no  measure  of  any  moment  whatever,  no  measure 
which  touches  on  party  policy,  can  be  introduced,  ex- 
cept by  the  cabinet,  or  with  its  permission.  In  effect  the 
party  chooses  its  leaders,  and  turns  over  the  initiative  in 
legislation  to  them.  Thus  there  is  legislative  absolutism 
based  upon  party.  This  absolutism  is  a  necessity,  be- 
cause the  dependence  of  the  ministry  upon  the  majority 
of  the  House  for  support  requires  that  they  should  have 
all  the  power,  as  they  have  all  the  responsibility. 

The  tenure  of  office  being  so  precarious,  there  is  bred 
a  quick  sympathy  with,  and  sensitiveness  to,  all  changes 
of  public  opinion.  The  individual  member  of  parlia- 
ment, on  account  of  the  power  of  the  leaders  to  dissolve 
the  House,  and  send  him  back  to  all  the  expense  and 
labor  of  a  new  election,  has  every  inducement  to  stand 
by  the  ministry  as  long  as  he  properly  can  ;  while  his  de- 
pendence upon  the  good  opinion  of  his  constituency  in 
case  he  should  have  to  appear  before  them  for  re-election, 
an  event  which  is  always  possible,  induces  him  to  keep 
as  close  to  their  views  as  he  can.  Consequently,  the  pos- 
session of  power  by  a  party  is  pretty  closely  dependent 
upon  public  opinion,  as  it  exists  at  short  intervals,  or  as 
it  changes  from  one  year  to  another.  Another  collateral 
result  is  that  the  press  is  influential  in  moulding  and 
reflecting  public  opinion. 

In  the  United  States  party  conditions  are  quite  differ- 
ent. The  tenure  of  office  of  the  President,  the  senators, 
and  members  of  the  House  of  Representatives,  and  of 
all  members  of  the  legislatures  in  all  the  states,  is  for 
fixed  terms,  and,  therefore,  public  or  party  opinion  can 
express  itself  only  at  definite  intervals.  Then,  again,  the 
President  is  in  office  for  four  years,  the  senators  for  six, 
and  the  members  of  the  House  for  two,  so  that  in  national 
politics  public  opinion  acts  at  irregular  intervals,  and,  as 


POLITICAL  PARTIES.  283 

it  were,  in  sections.  Moreover,  the  variations  in  the  fixed 
tenures  of  State  and  municipal  offices,  still  further  cut  up 
party  action.  The  consequence  is,  that  a  political  party 
may  intrench  itself  in  place,  and  retain  the  control  of  the 
national  government,  in  spite  of  frequent  ebbs  of  popular 
support.  It  takes  a  long  time  to  bring  public  opinion 
around  to  uniform  and  united  action  on  public  ques- 
tions. This,  in  part,  arises  from  the  mere  geographical  ex- 
tent of  the  country,  and  the  absence  of  concentration  of  the 
population,  obstructive  agents  which  are  overcome,  how- 
ever, in  large  part,  by  the  railroad,  the  telegraph,  and 
the  newspaper.  The  larger  cause  in  political  matters  lies 
in  the  Federal  system  of  parties  derived  from  its  proto- 
type in  the  government.  We  have  our  national  parties, 
our  State  parties,  even  our  city  and  our  township  parties, 
and  each  has  its  separate  organization,  though,  it  is  true, 
connected  by  general  ties  with  its  corresponding  national 
party.  The  development  has  been  toward  the  prepon- 
derance of  national  organizations,  and  the  centralization 
of  party  management,  but  this  tendency  has  not  produced 
the  same  dependence  of  the  dominantjparty  upon  the 
support  of  a  legislative  majority  as  in  England,  because 
the  President,  who  possesses  a  large  fraction  of  legislative 
power  through  his  qualified  veto,  is  elected  for  a  fixed 
term,  and  he  and  his  cabinet  remain  in  office  notwith- 
standing public  opinion  and  a  majority  of  both  houses 
of  Congress  may  be  against  their  policy.  Even  as  early 
as  Washington's  second  term  the  opposition  was  in  a  ma- 
jority in  the  lower  House.  Following  the  English  cus- 
tom, he  and  his  cabinet  would  have  resigned.  Again,  in 
the  twentieth  Congress,  during  the  presidency  of  John 
Quincy  Adams,  the  new  democratic  party,  which  had 
emerged  from  the  Monroe  era  of  good  feeling,  in  succes- 
sion to  the  old  republican  party,  obtained  control  of  the 


284  POLITICS. 

House  of  Representatives,  and  held  it  in  opposition  to 
the  executive,  and  before  the  close  of  his  term  the  Senate 
was  also  in  opposition.  Jackson  was  also  met  by  an  op- 
position which,  in  his  first  term,  extended  to  both  houses. 
Tyler  was  in  the  same  predicament  during  most  of  his 
four  years  of  office,  and,  without  citing  other  instances, 
the  administration  of  Johnson  furnishes  an  example  of 
how  an  absolute  breach  between  the  administration  and 
the  party  which  placed  it  in  power  may  go  on  without 
affecting  the  stability  of  the  latter. 

The  same  hindrances  which  prevent  the  rapid  centrali- 
zation of  power  in  the  Federal  government,  and  within 
that  government  in  one  of  its  branches,  act  in  opposition 
to  the  centralization  of  power  in  national  parties,  but  it 
may  be  safely  asserted  that  the  evolution  is  all  toward  cen- 
tralization. Parties  in  the  United  States  consist  of  oli- 
garchies of  managers  of  a  hierarchy  of  organizations,  na- 
tional, state,  county,  city,  and  district,  with  an  undeter- 
minate  following  of  voters  in  each.  Two  causes,  aside 
from  the  general  one  that  leadership  is  always  developed 
among  associated  men,  have  produced  this  special  prod- 
uct, which  is  sometimes  styled  the  "  American  system." 
The  one  is  universal  manhood  suffrage,  and  the  other 
the  multiplication  of  offices,  and  the  election  of  their  in- 
cumbents. Perhaps  we  should  go  further  back  and  assert 
that  the  development  of  the  equalizing  spirit,  which  has 
been  going  on  from  early  colonial  days,  has  led  to  uni- 
versal suffrage,  and  the  election  to  all  offices,  executive  as 
well  as  legislative,  as  its  natural  joint  offspring.  The  ac- 
cumulation of  political  labor  imposed  upon  the  citizen  by 
the  constant  recurrence  of  national,  state,  municipal, 
county,  and  township  elections,  and  the  attendant  claims 
upon  his  attention  in  choosing  a  multitude  of  officers,  is 
so  great,  that  the  ordinary  voter  has  not  the  physical  en- 


POLITICAL    PARTIES.  28$ 

ergy,  in  addition  to  his  bread-winning  pursuit,  to  arrange 
and  choose.  Naturally,  therefore,  the  universal  law  of 
the  division  of  labor  is  applied  to  politics,  and  a  certain 
number  of  men  devote  themselves  especially  to  the  man- 
agement of  party,  so  that  it  may  be  asserted  that  in  pro- 
portion to  the  universality  of  the  suffrage,  and  the 
number  of  offices  to  be  filled,  will  be  the  tendency  lo 
absolutism  in  party  management.  The  standard  of  those 
who  are  elected  to  office  will  be  that  of  the  greatest  num- 
ber of  the  voters,  and  the  standard  of  those  who  manage 
parties  will  be  the  same.  It  does  not  follow,  however, 
that  universal  suffrage  alone  is  immediately  productive  of 
these  results.  A  people  may  have  the  voting  privilege> 
and  yet  be  led  gladly  by  those  of  superior  education  or 
social  position.  It  is  not  merely  the  power,  but  the  con- 
sciousness of  the  power,  which  must  sink  deep  down  into 
the  people.  As  it  does  so  sink,  will  the  management  of 
parties  pass  more  and  more  into  the  forms  of  rigid  organi- 
zation, and  into  the  hands  of  common  men  who  make  it 
their  sole  business.  The  equalizing  spirit  must  have  per- 
vaded all  of  society  before  the  full  development  of  party 
absolutism  is  seen.  The  reason  why  in  England  the 
rapid  extension  of  the  voting  suffrage  has  not  been  fol- 
lowed by  the  development  of  party  oligarchies,  as  in  this 
country,  is  because  the  whole  social  tone  is  opposed  to 
equality.  There  is  no  person  in  the  world  who  has  so 
little  real  appreciation  of  the  conjunction  of  equality  and 
fraternity  with  liberty  as  the  Englishman.  It  has  been 
well  said,  that  every  Englishman  looks  up  to,  and  down 
upon  some  other  Englishman.  Gladstone,  a  few  years 
ago,  said  truthfully  of  his  own  people  in  one  of  his  ad- 
dresses :  "  There  is  no  broad  political  idea,  which  has 
entered  less  into  the  formation  of  the  political  system  of 
this  country,  than  the  love  of  equality  .  .  .  The  love  of 


286  POLITICS. 

freedom  itself  is  hardly  stronger  in  England  than  the  love 
of  aristocracy. "  * 

On  the  contrary,  in  the  United  States  the  equalizing 
spirit  appeared  early  in  the  social  tone  of  the  colonies, 
and  has  grown  with  especial  rapidity  since  the  Revolu- 
tion. In  our  social  and  political  systems  equality  is  in- 
sisted upon.  Twice  in  our  history  have  the  democratic 
masses  asserted  themselves  in  opposition  to  social  and  in- 
tellectual leadership  ;  first  in  1801,  in  sweeping  the  Fed- 
eral party  out  of  office,  and  again  in  1829,  in  electing 
Jackson.  Each  of  these  periods  marks  a  rise  in  the  demo- 
cratic wave. 

The  inevitable  tendency  to  the  support  of  the  leader, 
to  oligarchy,  to  absolutism  in  party,  fortunately  finds  its 
corrective  among  the  adherents  of  party  itself.  These 
very  vices  tend  constantly  to  drive  off  those  whom  the 
party  tie  does  not  bind  very  strongly,  into  opposition,  or 
the  formation  of  new  parties,  so  that,  as  already  suggested, 
political  parties  constantly  tend  to  an  equilibrium,  and 
thus,  in  the  free  state,  a  continuous  current  of  political 
activity  is  maintained,  which,  though  accompanied  with 
many  disagreeable  features,  nourishes  a  vigorous  life  in 
the  state. 

*  The  growth  of  the  English  democracy  in  consciousness  of 
power  is  illustrated  in  an  article  in  The  Nation,  by  A.  V.  Dicey,  en- 
titled,  "Why  do  people  hate  Mr.  Gladstone?"  No.  898,  p.  218. 
Sept.  14,  1882. 


CHAPTER    XXI. 

CONCLUSION. 

IN  the  foregoing  pages  we  have  sought  to  confine  atten- 
tion to  an  analysis  of  the  nation  or  state,  in  order,  if 
possible,  to  make  clear  to  the  mind  the  forces  which  de- 
termine its  interior  life.  Starting  with  the  nation  as  a 
social  and  political  organic  being,  the  line  of  examination 
has  led  us  down  through  its  interior  constitution,  bring- 
ing us  finally  to  the  political  party,  a  purely  voluntary 
combination  of  men  within  the  nation,  aiming  to  direct 
the  national  will  and  to  wield  the  national  force. 

It  may,  perhaps,  be  thought  that  we  should  now  take 
a  further  step  and  discuss  the  individual,  the  subject 
or  citizen  of  the  state,  and  more  particularly  the  ques* 
tions  pertaining  to  his  personal  rights  and  obligations. 
But  such  an  examination  does  not  properly  belong  to 
analytical  politics.  Rights,  whether  those  asserted  to  be 
inherent  in  every  person,  or  those  which  are  known  as 
personal  political  rights,  have  no  place  in  the  discussion 
of  analytical  politics,  because  both  can  be  recognized  and 
protected  under  any  form  of  government ;  they  pertain  to 
an  inquiry  into  what  a  nation  ought  to  do  rather  than 
into  what  it  is. 

We  have  seen  that  the  idea  of  the  sovereign  state  in- 
cludes also  the  idea  of  despotic  power  lodged  at  some 
point  in  the  state.  Two  questions  of  fact,  then,  necessarily 
arise  :  who  possesses  this  power,  and  through  what 
persons,  as  organs  of  the  state,  is  it  distributed  ?  If  we 


288  POLITICS. 

examine  an  aristocracy  we  find  the  power  lodged  at  one 
point,  and  distributed  in  one  way  ;  if  a  democracy,  at 
another  point  and  in  another  way.  Both  may  exist  and 
flourish  while  recognizing  and  guarding  the  so-called  in- 
herent rights  of  men. 

These  inherent  rights  have  been  well  formulated  in  our 
Declaration  of  Independence,  as  life,  liberty,  and  the 
pursuit  of  happiness.  Any  and  every  form  of  govern- 
ment can  foster  these  rights  without  affecting  its  form  or 
internal  action.  To  do  so,  must  be  accounted  purely  a 
matter  of  duty.  And  yet  we  know  that  when  the  sup- 
posed good  of  the  State  demands  it  our  lives  can  be  sacri- 
ficed in  war,  our  liberty  restrained  by  compulsory  service 
in  the  army,  and  our  pursuit  of  happiness  subordinated  to 
the  needs  of  the  community. 

In  the  social  state  two  kinds  of  rights  are  evolved  :  the 
rights  which  pertain  to  individuals  because  of  their  re- 
lations to  each  other,  and  the  rights  which  arise  in  favor 
of  the  whole  community  as  against  the  individual  who  is 
a  member  of  it.  Each  has  its  attendant  obligations. 

The  solution  of  the  question,  whether  the  individual 
has  a  divine  or  natural  right  to  his  life,  is  of  no  moment 
in  a  political  point  of  view.  We  are  concerned  merely 
with  his  claim  of  right  to  life  because  of  its  interest  to  the 
political  body.  As  between  individuals,  the  right  to  life 
when  looked  at  closely  is  found  to  be  no  more  than  an 
obligation  or  duty  imposed  on  everybody  not  to  kill  his 
fellow.  In  the  civilized  state  this  duty  is  imposed  by 
positive  law.  Why  ?  Not  because  it  pertains  to  the  in- 
herent constitution  of  the  state,  but  because  the  persons 
who  make  the  law  think  it  better,  more  expedient,  to  im- 
pose the  duty  than  to  allow  private  vengeance  or  passion 
full  play.  And  so  also  with  the  enjoyment  of  liberty  and 
the  pursuit  of  happiness. 


CONCLUSION.  289 

But  on  the  other  hand,  it  is  supposable  that  the  good 
of  the  state  might  be  advanced  if  the  state  sacrificed  the 
life  of  a  particular  individual ;  this  confers  a  right  upon  the 
state  to  take  the  life,  and  imposes  an  obligation  upon  the 
individual  to  surrender  it.  This  is  an  extreme  case, 
illustrating  the  double  relations  in  which  the  members  of 
society  stand,  first  toward  each  other,  and  secondly  to- 
ward the  state.  The  first  set  of  relations  are  regulated 
by  private  law,  the  second  by  public  law.  But  both  kinds 
of  law,  in  fact  all  law,  is  simply  the  expression  of  will  on 
the  part  of  the  state,  and  whether  or  not  the  laws  shall  be 
made  or  what  shall  be  their  tenor  are  purely  considerations 
of  expediency  and  morals.  These  considerations  fall  within 
the  domain  of  practical  politics,  which  should  treat  of 
what  the  state  ought  or  ought  not  to  do. 

When  we  leave  what  are  called  inherent  rights  and  come 
to  political  personal  rights  we  perceive  equally  that  they 
have  no  place  in  the  discussions  of  analytical  politics. 

Important  among  these  rights  are  :  Freedom  of  wor- 
ship, freedom  of  speech,  freedom  of  the  press,  and 
freedom  to  assemble  and  to  petition;  that  no  soldier  shall 
in  time  of  peace  be  quartered  on  the  citizen  ;  that  the 
people  shall  be  secure  in  their  persons,  houses,  papers, 
and  effects,  against  unreasonable  searches  ;  that  no  one 
shall  be  held  for  capital  or  infamous  crimes  without  pre- 
sentment or  indictment  of  a  grand  jury,  or  be  twice  put 
in  jeopardy,  or  be  compelled  in  a  criminal  case  to  be  a 
witness  against  himself,  or  be  deprived  of  life,  liberty,  or 
property  without  due  process  of  law,  or  have  his  private 
property  taken  for  public  use  without  just  compensation ; 
that  an  accused  person  shall  have  speedy  public  trial  by 
an  impartial  jury,  and  be  confronted  by  the  witnesses 
against  him  ;  that  excessive  bail  shall  not  be  demanded, 
nor  cruel  or  unusual  punishments  inflicted ;  that  the 
13 


290  POLITICS. 

writ  of  habeas  corpus  shall  be  maintained  ;  that  no  ex  post 
facto,  law  shall  be  passed  nor  the  obligation  of  a  contract 
be  impaired.  These  are  all  rights  created  and  secured  by 
positive  law.  They  are  not  absolutely  essential  to  the 
existence  of  a  highly  developed  political  organism. 
Whether  they  shall  be  recognized  and  acted  upon  de- 
pends altogether  upon  the  determination  of  the  person  or 
persons  controling  the  will  and  force  of  the  state.  We 
may  assert  that  every  state  should  have  such  a  bill  of 
rights.  We  know,  however,  that  it  is  wanting  in  many 
highly  civilized  states  ;  but  what  is  in  point  here  is,  that 
when  we  affirm  that  such  a  bill  should  be  adopted,  we 
are  only  affirming  that  the  state  should  use  its  inherent 
power  in  a  given  way.  Hamilton  in  the  Federalist  as- 
serted that  according  to  their  primitive  signification,  as 
stipulations  between  kings  and  their  subjects,  abridging 
the  prerogatives  of  the  former,  Bills  of  Right  have  no 
application  to  a  constitution  founded  on  the  power  of 
the  people,  and  executed  by  their  immediate  representa- 
tives and  servants. 

The  Declaration  of  the  Rights  of  Man,  adopted  by  the 
National  Assembly  of  France  in  1789,  asserts  that  men 
are  born  and  remain  free  and  equal  in  law ;  that  the  end 
of  all  political  association  is  the  preservation  of  natural 
rights  ;  that  the  principle  of  all  sovereignty  resides  in  the 
nation  ;  that  liberty  consists  in  the  ability  to  do  every- 
thing which  shall  not  injure  another,  so  that  the  exercise 
of  the  natural  rights  of  each  person  is  only  limited  by 
those  which  assure  to  other  members  of  society  the  enjoy- 
ment of  the  same  rights,  and  that  these  limits  can  only 
be  determined  by  law ;  and  so  on,  with  a  minute  declara- 
tion of  general  principles  which  are  admirable,  and  could 
be  applied  under  any  form  of  government.  But  the  mem- 
bers of  this  Assembly  knew  very  well  that  this  declaration 


CONCLUSION.  291 

of  abstractions  would  be  utterly  valueless,  unless  they 
themselves  had  the  supreme  power  of  the  nation  at  their 
command,  and  so,  on  the  same  day,  they  proceeded  to 
enact  in  the  new  Constitution  that  the  government  was 
monarchical,  but  at  the  same  time  that  the  National  As- 
sembly should  be  permanent ;  that  all  legislative  power 
should  reside  in  it,  and  that,  though  the  king  could  re- 
fuse his  assent  to  laws  passed  by  the  Assembly,  yet  that 
his  veto  had  only  a  suspensive  effect,  and  could  be  over- 
ruled by  a  succeeding  Assembly.  Thus  actual  sovereignty 
was  lodged  in  the  legislative  body,  and,  as  this  body  was 
the  creator  of  the  Constitution  and  could  annul  it,  the 
Declaration  of  Rights  imposed  no  limitation  upon  its 
power,  and  was  in  effect  no  more  than  a  political  homily 
addressed  to  the  nation,  pointing  out  certain  things  it 
should  or  should  not  do. 

Rights,  as  the  creation  of  public  or  private  law,  vary  as 
the  will  of  the  nation  varies,  and  their  consideration  falls, 
therefore,  not  in  the  realm  of  analytical  politics,  which 
deals  with  the  nature  and  organization  of  the  nation,  but 
in  the  realm  of  practical  politics,  which  deals  with  what 
the  state  wills  and  does,  or  should  will  and  should  do. 


INDEX. 


ABSOLUTISM   not  incompatible   with   the    "greatest  good  of  the 

greatest  number,"  2. 
Achaia,  League  of,  its  territory  and  constitution,  254,  255  ;  Poly- 

bius  on,  255. 
Adoption,  60. 

Allegiance  to  a  state  and  to  the  United  States,  31. 
Alliances  of  states,  224. 
Amendment  of  the   constitution,  in  the  United  States,   145-151  ; 

power  of  congress  extended  by,  247  ;  in  the  German  Empire, 

151 ;  in  France,  152  ;  in  Austro-Hungarian  Empire,  152  ;  in 

Great  Britain,  152. 
Amphictyonic  assembly,  10. 
Antagonistic  elements  in  society,  174. 
Appointments,  President's  function  in,  183  ;  senate's  function  in, 

184. 

Aristocracy,  40  ;  love  of,  in  England,  285. 
Aristotle,  on  the  nature  <)f  the  state,  28  ;  on  man's  political  nature, 

49,  68. 

Articles  of  Confederation  [See  Confederation], 
Aryans,  early  institutions  of  the,  71. 
Asiatic  empires,  lacked   national  unity,  n  ;   political  growth  in, 

67. 

Assembly  in  Virginia,  first  legislative,  97  ;  representatives  to,  TOO. 
Austin,  34,  35,  38,  45  ;  his  doctrine  stated  by  Maine,  35. 
Austria,  upper  house  of,  166  ;  influence  of  her  rivalry  with  Prussia 

on  the  unity  of  Germany,  262. 

Bagehot,  Walter,  on  nation-making,  24. 

Balance  of  power  in  a  government,  movement  of,  208  ;  in  the  Ger- 
man Empire,  210  ;  in  the  United  States,  210, 


294  INDEX. 

Baltimore,  Lord,  118-120. 

Bancroft,  Archbishop,  ioi; 

Bancroft,  Geo.,  on  the  Mayflower  covenant,  103. 

Belgium,  upper  house  of,  169. 

Bentham,  34. 

Bicameral  system,  164-178  ;  advantage  of,  177. 

Bismarck  defines  the  chancellor's  power  in  legislation,  160. 

Bluntschli,  on  sovereignty,  45  ;  on  political  parties,  265. 

Bodin,  on  sovereignty,  41-43. 

Brewster  and  Robinson,  101. 

British  colonies  in  America,  sovereignty  over,  36  ;  political  develop- 

ment  of,  82  ;  dates  of  settlement  of,   83  ;  progress  of,   126  ; 

relation    to   England,    128,    140  ;    relation   to   one   another, 

228. 

Bundesrath,  its  function,  in  legislation,  188  ;  composition  of,  226. 
Bundesstaat,  224. 

Burgesses,  House  of,  1619,  98,  100. 
Burke,  on  taxing  the  Americans,  133  ;  on  the  Revolution  of  1688, 

207. 

Cabinet  in  England,  194,  222. 

Calhoun,  on  the  impending  crisis,  245. 

California,  constitution  of,  247. 

Calvin's  plan  of  church  government,  115. 

Canada,  French  in,  130  ;  expedition  against,  130 ;  upper  house  of, 
172. 

Carolina,  settlement  and  "  Constitutions  "  of,  120  ;  several  govern- 
ments in,  122  ;  parties  in,  and  government  till  the  Revolu- 
tionary War,  123  ;  population  in  1740,  124  ;  separated  into 
North  and  South  Carolina,  124. 

Charters  of  Virginia  Company,  91. 

Checks  and  balances,  208  ;  in  the  government  of  the  United  States, 
214. 

Church,  the,  72,  74  ;  parish,  support  of,  in  England  and  New 
England,  127  ;  acquired  an  individual  existence,  164  ;  Roman 
Catholic,  its  growth  and  organization,  272. 

Citizen,  of  a  state  and  of  the  United  States,  30  ;  in  relation  to 
central  and  local  government,  241-244  ;  in  the  United  States, 
his  two  sets  of  relations,  245. 

City,  the,  in  Greece  and  Italy,  10. 


INDEX.  295 

Clanship,  force  of,  in  Greece  and  Italy,  64. 

Classes,  medieval,  danger  of  becoming  castes,  14  ;  in  the  Virginia 
Colony,  93,  96  ;  basis  of  the  political  system  of  the  middle 
ages,  164,  165. 

Clergy  in  Virginia,  duties  of,  98,  99. 

Colleges,  help  to  unite  the  colonists,  132. 

Colonies,  British,  in  America,  sovereignty  over,  36 ;  political 
development  of,  82  ;  dates  of  settlement  of,  83  ;  progress  of, 
126  ;  relation  to  England,  128  ;  relation  to  one  another  and  to 
Great  Britain,  140,  228. 

Colonists  of  Virginia,  character  of,  94  ;  connection  with  the  home 
company,  95  ;  number  in  1619,  95. 

Commons,  House  of,  methods  in  legislation,  187  ;  power  in  rev- 
enue matters,  191  ;  embraces  the  legislative  and  the  executive, 
194  ;  F.  Harrison  on,  206  ;  222. 

Commonwealth's  men,  73. 

Communism  in  Virginia,  93,  94. 

Confederation,  Articles  of,  82,  140,  225,  229,  232,  233. 

Confederacy,  of  N.  E.  colonies,  1643,  113,  129  ;  its  liability  to 
failure,  139  ;  government  in  a,  225  ;  its  essential  characteristic, 
227  ;  nature  of,  228  ;  new  American  conception  of,  230  ;  why 
short  lived,  250  ;  position  in  political  development,  251. 

Conflict,  the  source  of  rights,  138  ;  between  the  legislative  and  the 
executive,  196. 

Congress,  power  in  relation  to  treaties,  181 ;  likely  to  encroach 
upon  the  power  of  the  President,  216  ;  control  over  Supreme 
Court  and  inferior  courts,  217  ;  tendency  to  extend  its  power, 
218  ;  under  the  Articles  of  Confederation,  226  ;  powers  of, 
granted  by  the  Constitution,  248  ;  its  conduct  in  reconstruc- 
tion, 250. 

Connecticut,  settlement  of,  in. 

Conservatism  and  radicalism,  174. 

Constitution,  a,  expresses  permanent  will  of  the  nation,  142  ; 
method  of  changing,  144,  145  ;  essentials  of,  153  ;  purpose  of, 
179  ;  early  Aryan,  71  ;  old  English,  71  ;  of  the  United  States: 
as  to  the  treaty-making  power,  182  ;  on  separation  of  powers, 
197  ;  makers  of  the,  231  ;  new  conception  embodied  in,  227  ; 
views  regarding  it,  229  ;  what  it  is,  231  ;  ratification  of,  232  ; 
great  change  introduced  by  it,  233  ;  Webster's  propositions 
descriptive  of,  238  ;  power  of  congress  extended  by  amend- 


296  INDEX. 

ments,   247  ;  grants  powers   to  congress,  249  ;   elasticity  of, 

250  ;  strict  and  liberal  construction  of,  276. 
Constitutions  of  Carolina,  121  ;  reception  by  the  colonists,  122. 
Constitutional  law,  makers  of,  142-154. 

Constitutional  growth  of  England  and  Sweden  compared,  74-78. 
Continental  states,  their  transition  from  absolutism  to  democracy, 

1 88  ;  movement  of  power  in,  209. 
Contract,  social,  68. 
Convention,    constitutional,  problem  it  had  to   solve,   140,  141  ; 

161-163  ;  discussions  on  treaty-making,  182,  231. 
Counties,  Virginia  colony  divided  into,  99  ;  divided  into  parishes, 

100  ;  in  Mass.  Bay  colony,  no  ;  in  Maryland,  119. 
Courts,  rules  of,  57  ;  Continental,  as  compared  with  those  of  the 

United  States,  202. 
Court,  Supreme,  of  the  U.S.,  217. 
Cromwell,  73. 

Declaration  of  Right,  206. 

Defensional,  257. 

Delaware,  Lord,  94. 

Denmark,  upper  house  of,  169. 

Departments   of    government,   laws    providing,    58,  193 ;    in  the 

United  States,  220. 

Dependence  of  man  on  his  fellows,  12. 
Differentiation  in  government,  219-222. 
Division  of  labor  in  government,  62. 
Divisions,  political,  of  England,  86. 
Domination,  desire  of,  universal,  135-138. 
Dred  Scott  decision,  217. 
Dutch  West  India  Company,  117,  118. 
Dutch  settlement  in  New  York,  83. 

England,  upper  house   of,   171  ;    treaty-making  power  in,   183  ; 

equality  in,  as  compared  with  the  United  States,  285. 
Equality  in  England  and  the  United  States,  285,  286. 
Evolution,   political,  2,  9 ;   tendency  of,  208,    227  ;  social,   60  ; 

Spencer's  law  of,  24. 
Estates  general,  1789,  186. 
Exeter,  settlement  at,  112, 
Expatriation,  31. 


INDEX.  297 

Faction,  as  distinguished  from  party  in  the  State,  267  ;  generated 

within  the  party,  274. 

Family,  starting-point  of  progress,  10  ;  joint-undivided,  60. 
Farms  of  Virginia,  size  of,  96. 
Father,  a  despot  in  the  early  family,  60,  61. 
Federal  government,  a  new  invention  in  1789,  141  ;  tendency  of 

power  in,  223  ;  legal  theory  of  228  ;  increasing   duties   and 

importance  of,  in  the  United  States,  246-252. 
Federal  Act,  260. 
Federal  and  state  powers,  234. 

Federation,  forms  of,  224  ;  distinction  made  by  Germans,  224. 
Feudalism  in  New  York,  117. 
Feudal  system,  decay  of,  14. 
Final  Act  of  Vienna,  261. 
Force  of  the  nation,  55-62. 
France,  upper  house  of,  170  ;  abnormal  condition  of,  since  1789* 

205  ;  parties  in,  205,  280. 
Frederick  William,  IV.,  219. 
Freeman,  E.  A.,  on  early  Aryan  institutions,  71  ;  on  the  Achaian 

League,  255  ;  on  the  Swiss  Confederation,  259. 
French  Constitution,  changed  by  Louis  Napoleon,  185,  186. 
French  Missions,  130. 
Functions,  political,  separation  of,  193  ;  differentiation  of,  219. 

George  III.,  his  stupidity  favorable  to  Americans,  133. 

Georgia,  settlement  and  early  government  of,  125. 

German  Empire,  amendment  of  its  constitution,  151,  152  ;  upper 
house  of,  171  ;  treaty-making  power  in,  183  ;  legislative  initia- 
tive in,  188  ;  settlement  of  interstate  disputes,  198  ;  balance 
of  power  in,  210  ;  enforcement  of  a  law  against  a  state  in  the, 
250 ;  increasing  centralization  probable,  263  ;  parties  in,  280. 

Gladstone,  188  ;  on  love  of  equality  in  England,  285. 

Government,  the  outgrowth  of  man's  nature,  49  ;  expresses  the 
will  of  the  nation,  50;  functions  of,  51  ;  typical,  of  the 
Aryans,  71,  72;  in  the  Middle  Ages,  74;  in  Pennsylvania, 
124  ;  in  the  British  Colonies  in  America,  126  ;  three  depart- 
ments of,  193  ;  of  Great  Britain,  generally  accepted  by  the 
people,  205,  207;  federal,  tendency  of  power  in,  223;  of  the 
United  States,  Madison  on,  228  ;  federal  or  national,  231,  234  ; 
judicial  opinions,  on,  240  ;  business  of,  245. 

13* 


298  INDEX. 

Great  Britain,  in  a  normal  governmental  position,  205,  207. 
Greeks,  politics  of  64  ;  limit  of  their  political  development,  85  ; 

partitioned  among  leagues,  253. 
Ccote,  on  the  politics  of  Greeks,  64. 

Growth,   normal  political,  conditions  of,  203,  204  ;  national,  227. 
Groups,  social,  division  of  the  race  into,  6,  9  ;  survival  of,  12. 

Hamilton  and  Jefferson  on  the  National  Bank,  275. 

Harrison,  F.,  on  the  House  of  Commons,  206. 

Helvetic  Republic,  258. 

History,  the  teachings  of,  20. 

Hobbes,  on  sovereignty,  43. 

Holland,  on  sovereignty,  45  ;  on  the  essentials  of  a  constitution 

153. 

Holland,  upper  house  of,  169. 
Holy  Roman  Empire,  tendency  of  power  in,  259. 
Hungary,  upper  house  of,  167. 

Ideas  of  government,  English,  in  seventeenth  century,  86. 

Impeachment,  function  of  Senate  in,  184. 

Imperialists  in  France,  205. 

Independence,  Declaration  of,  232,  288. 

India,  social  groups  in,  64. 

Imitation,  force  of,  in  political  growth,  24,  78  ;  seen  in  the  de- 
velopment of  colonies,  82. 

nitiative  in  legislation,  in  England,  187,  281 ;  in  the  German  Em- 
pire, 188  ;  in  France,  190  ;  in  the  United  States,  190-192. 

Instinct,  political,  a  factor  in  political  organization,  68,  69,  70  ; 
influence  in  western  nations,  71  ;  in  the  English  and  the 
French,  81  ;  influences  the  development  of  colonies,  90  ;  a 
force  in  the  growth  of  the  United  States,  126.' 

Institutions,  growth  of,  59  ;  nature  of  local  and  national,  63-67  ; 
early  Aryan,  71. 

Instructions  to  delegates,  165. 

Intelligence  and  instinct,  LeConte  on,  69  ;  in  different  orders  of 
animals,  70. 

International  law,  223. 

Italy,  upper  house  of,  167. 

Tackson,  his  view  of  the  presidential  office  in  the  United  States,  214. 


INDEX.  299 

Jamestown,  settlement  at,  91. 

Jay's  treaty,  180,  21 1. 

Johnson,  his  controversy  with  congress,  216. 

Judge-made  law,  200. 

Judiciary,  in  the  Mass.  Bay  colony,  1 10  ;  its  position  in  the  United 

States,    198,    216  ;    checked   by   the   legislature,   217  ;   not  a 

balance  wheel  between  parties,  2 1 8. 
Jury  trial  preserved  in  Virginia,  92. 
Justices  of  the  peace,  89,  90. 

Kinship  as  the  basis  of  political  community,  30,  60. 
Kleisthenes,  10. 

Land  in  the  New  World,  in  theory  owned  by  the  king,  91. 

Law,  growth  of,  3  ;  as  a  command,  38,  52  ;   constitutional,  makers 

of,  142-154;    Austin's  view  of,   154;    administrative,  Austin 

on,  154  ;  makers  of,  155-163  ;  nature  of,  155. 
Law-making,  organs  of  the  sovereign  in,  155  ;  in  the  United  States, 

156,  210  ;  function  of  the  courts  in,  200. 
Laws,  why  obeyed,  57  ;    codification  of  in  Virginia,  99  ;  first,  in 

.New  York,  117. 
Leadership  in  the  party,  271. 

League,  alternative  tendencies  in  the,  139  ;  in  Greece,  139. 
Legislation,  in  Mass.  Bay  colony,  108,  109  ;  contrast  as  to  details 

between  English  and  French,  200  ;  initiative  in,  179-192. 
Legislature,  in  the  United   States,  156  ;  in  the  French  Republic, 

158  ;  in  the  German  Empire,  159  ;  of  the  Middle  Ages,  166  ; 

nature  of  the,  176  ;  tendency  to  extend  its  power,  218. 
LeConte,  on  intelligence  and  instinct,  69. 
Legitimists  of  France,  205. 
Lieber,  Francis,  13. 

Literature,  aids  the  growth  of  nationality  in  America,  131. 
Leviathan,  doctrine  of,  43. 
Local  powers,  63-67,  119. 
Locke,  121. 

London,  its  government,  89. 
Lords,  House  of,  171. 

Louisiana,  purchase  of,  by  the  United  States,  276. 
Lower  house  of  legislature,  164,  173  ;  in  the  Mass.  Bay  colony, 

109  ;  in  the  United  States,  178. 


3<DO  INDEX. 

Lycurgus,  208. 
Lykia,  League  of,  253. 

Macaulay,  on  English  parties,  270. 

Madison,  on  the  U.  S.  federal  government,  228. 

Magistrates,  election  of,  in  Mass.  Bay  colony,  109. 

Magna  Charta,  87,  165. 

Maine,  Sir  Henry,  statement  of  Austin's  doctrine  of  sovereignty, 

35  ;  on  kinship,  60  ;  on  the  power  of  the  father,  61  ;  on  the 

social  groups  of  India,  64. 
Majority  rule,  basis  of,  58. 
Maryland,  charter  of,  118. 
Massachusetts  Bay  Colony,  106. 
May,  on  the  Swiss  Confederation,  257. 
May > flower •,  83  ;  passengers  of  the,  126. 
Mechanism  of  government,  laws  providing  for  the,  57. 
Mediation,  Act  of,  258. 
Middle  Ages,  political  system  of  the,  165. 
Missouri  Compromise,  218. 
Mommsen,  on  clanship  in  Italy,  64. 
Monmouth's  rebellion,  95. 
Montesquieu,   on  the  separation  of    powers,   195  ;    reference   to 

Lykia,  254. 

Morality,  positive,  embraces  international  law,  224. 
Mulford,  on  the  Nation  as  an  organism,  26. 

Nation,  the,  6-32  ;  significance  of  the  term,  6-8  ;  an  organic  being, 
8  ;  formation  of,  15  ;  distinguished  from  the  government,  46  ; 
oneness  of,  51  ;  constituent  elements  of,  63;  growth  of,  illus- 
trated in  the  United  States,  82. 

National  sentiment,  growth  of,  16-22. 

National  unity  in  the  United  States,  early  impulses  to,  126-134. 

National  Assembly,  186. 

National  Bank,  significance  of  discussion  on,  1790,  275  ;  Hamilton 
and  Jefferson  on,  275. 

Nationality  of  the  colonies  in  America,  84. 

Napoleon,  Louis,  changes  the  French  constitution,  185. 

New  Haven  Colony,  112. 

New  Jersey,  118. 

Newspaper,  the,  aids  the  union  of  the  Colonies,  132. 


INDEX.  301 

New  York,  settlement  of,  83,  117  ;  feudalism  in,  117. 

Netherlands,  the,  development  of  central  power  in,  259. 

Nordhoff,  on  governments,  48. 

North  German  Union,  262. 

North,  Lord,  on  taxing  Americans,  133. 

Obedience  to  law,  reason  of,  57. 

Offices,  federal   and   state,  comparative   estimation  of,  early  and 

now,  251. 

Organisms,  political,  structure  and  action  of,  I. 
Orleanists,  205. 

Parish,  old  English,  87-90  ;  taxes,  89  ,  jurisdiction  of,  88  ;  politi- 
cal character  of,  99  ;  relation  to  the  county,  99 ;  legislation  in 
Virginia  as  to  functions  of,  98  ;  in  England  and  Virginia,  like 
the  New  England  town,  113  ;  in  Maryland,  119  ;  in  Carolina, 
123  ;  English,  represented  in  the  American  town  or  plan- 
tation, 82. 

Parishes,  counties  of  the  Virginia  colony  divided  into,  100. 

Parties,  political,  5,  175  ;  in  France,  205  ;  general  theory  of,  265- 
286  ;  origin  of,  269  ;  their  aim,  265  ;  conditions  essential  to  their 
existence,  265  ;  character  of  the  question  answered  by  party 
conflict,  266  ;  their  tendency  in  a  free  state,  274  ;  why  two  or 
more  than  two,  278  ;  English  and  American  contrasted,  281. 

Party,  choice  of,  by  individuals,  270. 

Pennsylvania,  governmental  foundations,  of,  124. 

People  and  nation,  different  uses  of  the  terms,  7. 

Philip  of  Hesse,  his  church  government,  114. 

Plantations,  95,  96  ;  commanders  of,  98,  99  ;  nature  of,  100  ;  in 
Mass.  Bay  Colony,  108,  109  ;  in  New  England  and  Virginia, 
113  ;  basis  of  each  in  New  England,  114  ;  powers  of,  116. 

Planters,  93,  95. 

Plebiscite ',  enables  Napoleon  to  change  the  constitution,  186. 

Plymouth  colony,  organization  of,  102  ;  covenant  formed  on  the 
Mayflower,  102  ;  government  and  commercial  features  of, 
104. 

Political  parties,  present  character  of,  175. 

Politics,  analytical,  subject-matter  of,  I. 

Pollock,  F.,  on  Aristotle's  views  of  the  state,  28. 

Polybius,  on  the  Achaian  League,  255. 


302  INDEX. 

Pomeroy,  J.  N.,  on  sovereignty  and  the  sovereign,  46. 

Poor-law,  88. 

Population  of  the  Virginia  Colony,  100;  of  the  United  Colonies 
of  New  England,  113, 

Portugal,  upper  house  of,  168. 

Power,  desire  to  wield  it  universal,  135-138  ;  drift  of,  in  the  U.  S., 
215  ;  federal  and  state,  234  ;  of  states,  judicial  decisions  on, 
240  ;  of  congress  under  the  constitution,  248  ;  drifting,  in  the 
U.  S.,  toward  congress,  250,  231-252  ;  tendency  of,  in 
European  federations,  253-264. 

Powers,  law-making,  40  ;  distribution  of,  193-202  ;  separation  of, 
through  the  constitution,  197. 

President  of  the  United  States,  legislative  functions  of,  156-157, 
160  ;  initiatory  power  of,  180  ;  power  as  to  appointments, 
183  ;  power  to  remove  officers  appointed  by  him,  211  ;  con- 
gressional limitations  of  his  power,  212  ;  importance  of  his 
position,  214  ;  in  opposition  to  congress,  283. 

President  of  the  French  Republic,  158. 

Present  political  age,  15,  16. 

Providence,  settlement  by  Roger  Williams,  in. 

Prussia,  upper  house  of,  167  ;  constitution  from  Frederick  William, 
IV.,  219. 

Puritans,  101  ;  settlement  in  America,  106,  112;  in  Carolina,  122, 
123. 

Quakers  in  New  Jersey,  118. 

Radicalism  and  Conservatism,  174. 

Rebellion,  position  of  states  in,  249. 

Reichstag,  relation  to  legislation,  188. 

Representative  system,  beginnings  of,  in  the  parish,  88. 

Representatives,  relation  to  constituents,  148  ;  choice  of,  175  ; 
House  of,  178  ;  on  Jay's  treaty,  211. 

Revolution,  political,  149  ;  objects  of,  185. 

Revolution  of  1688,  207. 

Revolution,  French,  185,  186  ;  its  influence  in  Switzerland,  258  ; 
its  influence  in  the  United  States,  276. 

Rights,  national  and  individual,  25  ;  Declaration  of,  206  ;  no  dis- 
cussion of,  in  analytical  politics,  287  ;  two  kings  of,  inherent 
and  political,  288-290. 


INDEX.  303 

Rights  of  Man,  Declaration  of,  290. 
Roads  and  bridges,  88,  89,  90. 
Robinson  and  Brewster,  101. 

Savigny,  on  the  nation  as  the  source  of  positive  law,  26. 

Scott,  Dred,  Case,  217. 

Secession,  doctrine  of,  the  outcome  of  the  "  compact"  theory, 
238. 

Self-government  in  England  and  the  Colonies,  126-128. 

Senate  of  the  United  States,  177,  178  ;  function  in  diplomatic 
affairs,  180  ;  appointing  and  impeaching  power,  184 ;  an 
oligarchy,  21 1. 

Separation  of  powers,  Montesquieu  on,  195  ;  thought  to  be  com- 
plete in  the  British  government,  213  ;  significance  of,  222. 

Separatists  and  non-conformists,  114-115. 

Servants  in  Virginia,  96. 

Shaftesbury,  121. 

Society,  political,  33,  46. 

Sovereign,  the,  33-46  ;  meaning  of  terms,  33-38  ;  determination 
of,  in  any  given  state,  38  ;  declares  the  will  of  the  nation, 
40  ;  Hobbes  on,  43  ;  Pomeroy  on,  46  ;  organs  of,  47-54  ;  the 
person  or  body  competent  to  amend  the  constitution,  144 ; 
makers  of,  145-147,  153;  in  the  United  States,  151  ;  in  the 
German  Empire,  152. 

Sovereignty,  divided  between  the  states  and  the  United  States, 
34  ;  characteristic  marks  of,  37-38  ;  our  North  American  col- 
onies, 36  ;  discussed  by  Bodin,  41-43  ;  by  Hobbes,  43  ; 
attributes  of,  as  stated  by  Bluntschli,  45  ;  defined  by  Holland, 
45,  46  ;  itself  indivisible,  but  the  exercise  of  sovereign  powers 
divisible,  233. 

Spartan  government,  208. 

Spencer,  his  law  of  social  evolution,  24 ;  weakness  of  his  political 
discussion,  80. 

Sphere  of  the  state,  not  dependent  on  its  form  of  government,  3. 

Staatenbund,  224. 

Stamp  Act,  133. 

State,  not  synonymous  with  nation,  6  ;  development  of  the  idea  of, 
50. 

State  constitutions,  specific  restrictions  of  the  later,  247. 

State-rights,  229,  230  ;    advocates  of,   231  ;  logical  outcome   of, 


304  INDEX. 

234-238  ;  debate  on,  239  ;  doctrines  of,  as  to  the  relation  of 

the  citizen  to  the  federal  government,  244  ;  why  importance 

given  to  the  theories  of,  244. 
States  of  the  Union,  relation  to  sovereignty,  34  ;  recognition  and 

powers  of,  232. 

Statutes,  French  and  English  compared,  200. 
Stubbs,  on  the  social  unit  of  England,  65. 
Suffrage,  universal,  in  the  United  States,  176. 
Supreme  court  of  the  United  States,  217. 
Sweden,  upper  house  of,  168. 
Swedish  immigrants  to  America,  83. 
Switzerland,   upper  house  of,   170;    tendency  of  power  in,  256; 

present  constitution  of,  258. 

Taney,  Chief-Justice,  in  the  Dred  Scott  case,  217. 

Taxes  in  the  parish,  89. 

Tendencies,  centralizing   and  disrupting,  in  the  United  States,  82, 

83- 

Tenure  of  Office  Act,  211. 
Territorial  sovereignty,  30. 
Tithing,  86. 

Tobacco,  its  cultivation  in  Virginia,  96. 
Tolerance,  religious,  in  Maryland,  119. 
Town,  powers  of,  in  Mass.  Bay  Colony,  no;  like  the  English 

parish,  113  ;  political  activity  of,  116;  in  New  York,  117. 
Townshend  Bill,  133. 

Treaty,  a,  nature  of,  180  ;    relation  to  laws  made  by  congress,  181. 
Treaty-making  power,  in  the   United  States,  180-183;   in  Great 

Britain,  183  ;  in  the  German  Empire,  183. 
Two  houses  of  legislature,  reason  of,  161,  177. 
Tyler,  "  History  of  American  Literature,"  quoted,  131. 
Type  of  nationality,  23. 

Union,  of  sovereign  states,  139  ;  personal,  224. 

Unit  of  political  organization,  64-66. 

Upper  house  of  legislature,  in  Mass.  Bay  colony,  109,  164 ;  com- 
position in  Austria,  166  ;  in  Hungary,  167  ;  in  Prussia,  167  ; 
in  Italy,  167  ;  in  Portugal,  168  ;  in  Sweden,  168  ;  in  Den- 
mark, 169  ;  in  Holland,  169 ;  in  Belgium,  169  ;  in  France, 
170;  in  Switzerland,  170;  in  the  German  Empire,  171;  in 


INDEX.  305 

England,  171  ;   in  New  South  Wales,  171;  in  Victoria,  172; 
in  Canada,  172. 

Vagabondage,  increase  of,  88. 

Veto,  in  the  king  in  the  Carolinas,  124  ;  in  the  governor  in  Penn- 
sylvania, 124;  in  England,  158,  190;  in  the  French  Repub- 
lic, 158,  190;  in  the  German  Empire,  159  ;  in  France,  during 
the  Revolution,  186  ;  absolute,  significance  of,  189  ;  force  of, 
in  influencing  legislation  in  the  U.  S.,  215. 

Vienna,  Congress  of,  261. 

Virginia  company,  its  charters,  organization,  objects,  and  form  of 
government,  91-93. 

Voting,. real  significance  of,  277. 

Voting  in  the  colonies,  in  Virginia,  96  ;  confined  to  church  mem. 
bers,  in,  115  ;  in  Plymouth  colony,  126. 

War,  its  influence  on  national  growth,  22  ;   between  Prussia  and 

Austria,  cause  of,  251. 

Warfare,  the  normal  condition  of  humanity,  136. 
Waitz,  on  the  nation  as  a  moral  organism,  29. 
Washington  and  Jay's  treaty,  21 1,  212. 
Webster's  reply  to  Calhoun,  238. 
Westphalia,  treaty  of,  260. 
Will   of   the  nation,   39  ;   organs  to  express  the,  47,   52-54,   55  ; 

forms  of  expressing  the,  142  ;  to  be  distinguished  from  the 

force  of  the  nation,  196. 
Will,  need  of  a  superior,  138. 
Williams,  Roger,  in. 

Yeardley,  Sir  George,  arrival  in  Virginia,  94. 


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